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My client which for these purposes is ABT Limited (represented by Mr Billinghurst) does accept that a pragmatic approach is required to bring this unfortunate matter to an end but most certainly without acceptance of liability.Natural or Private?
The issue as to the adequacy of the letter of demand in these cases relates to a standard form letter used by the plaintiff over a considerable period of time. The issue is complicated by the fact that the adequacy of that form of letter of demand was considered by the High Court in a number of ex tempore judgments (McGovern J. and Dunne J.) and further has been considered in a written judgment delivered in the High Court (Laffoy J.) in the case of GE Capital Woodchester Homeloans Limited v. Reade and Another (Unreported, High Court, 12th November, 2012) in which Laffoy J. came to the conclusion that the letter of demand relied on by the plaintiff in those proceedings was not a sufficient demand to enable the plaintiff to bring proceedings under section 62(7). The considered decision in the Reade case reached a different conclusion to that given in the course of the ex tempore judgments referred to previously.
That letter, in its own terms purported to rely on a right conferred by the deed of charge to enter into possession of the property ‘in the event of default by you in respect of the repayments due by you…’. Insofar as the advance came within the scope of ‘general indebtedness’, the covenant to pay came into effect only on demand being made. The present case concerns a claim for possession, not pursuant to any express terms conferring a right to possession, but upon the exercise by the Court of its power to grant an order for possession ‘where repayment of the money secured by the instrument of charge has become due’. That, in turn, depends on the appellant being able to show that the general indebtedness has become due. I am satisfied that the appellant could not apply to the court for an order pursuant to s. 62(7) of the Act on the basis of general indebtedness without proof of prior demand for payment, since the covenant applied only upon demand for payment. A suggestion that the respondent might avoid the demand for possession by making a specified payment does not constitute a demand for payment. On this ground, therefore, I believe that the applicant’s claim must fail. I would dismiss the appeal.”
In that letter, it was assumed that the entire balance outstanding on the charge had fallen due and owing as a result of the defendants’ default. In accordance with the terms of the contract between the plaintiff and the defendants embodied in the charge that was not the case. A demand was necessary to call in the entire principal and interest outstanding. The letter of 2nd February, 2010, like the letter relied on in the Wise case, was not a demand which rendered the principal money repayable, so as to confer jurisdiction under s. 62(7) on the Court.
11. This Court is bound by the decision of the Supreme Court in the Wise case. Therefore, counsel for the second defendant was correct in submitting that that decision determines the issue.”
Laffoy J. then made an order dismissing the plaintiffs claim for possession.
Conveyancing Act 1881
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Regulation of exercise ef power of sale.
20. A mortgagee shall not exercise the power of sale conferred by this Act unless and until—
(i.) Notice requiring payment of the mortgage money has been served on the mortgagor or one of several mortgagors, and default has been made in payment of the mortgage money, or of part thereof, for three months after such service; or
(ii.) Some interest under the mortgage is in arrear and unpaid for two months after becoming due; or
(iii.) There has been a breach of some provision contained in the mortgage deed or in this Act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon.
SHALL.shall (v.) Look up shall at Dictionary.com
Old English sceal, Northumbrian scule “I owe/he owes, will have to, ought to, must” (infinitive sculan, past tense sceolde), a common Germanic preterite-present verb (along with can, may, will), from Proto-Germanic *skal- (cf. Old Saxon sculan, Old Frisian skil, Old Norse and Swedish skola, Middle Dutch sullen, Old High German solan, German sollen, Gothic skulan “to owe, be under obligation;” related via past tense form to Old English scyld “guilt,” German Schuld “guilt, debt;” also Old Norse Skuld, name of one of the Norns), from PIE root *skel- (2) “to be under an obligation.”
Ground sense of the Germanic word probably is “I owe,” hence “I ought.” The sense shifted in Middle English from a notion of “obligation” to include “futurity.” Its past tense form has become should (q.v.). Cognates outside Germanic are Lithuanian skeleti “to be guilty,” skilti “to get into debt;” Old Prussian skallisnan “duty,” skellants “guilty.”
“(1) Subject to this Part, the powers and rights of a mortgagee under sections 97 to 111
(a) apply to any mortgage created by deed after the commencement of this Chapter”
It only applies therefore to mortgages created by deed after the 1st December, 2009. It appears that there is a lacuna created by the repeal of s. 62(7) in that, as I have found, those lenders who did not have an entitlement to apply for an order pursuant to s. 62(7) by the 1st December, 2009, are not in a position of avail of the provisions of the 2009 Act, to apply for an order of possession as their right to apply for such an order is not saved by the provisions of the 2005 Act. It is not for the court to supply that which is not contained in the 2009 Act.
15. Section 62(7) of the Act of 1964, before its repeal by the Act of2009, provided:
“When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge … may apply to the court in a summary manner for possession of the land … , and on the application the court may, if it so thinks proper, order possession of the land … to be delivered to the applicant, and the applicant, upon obtaining possession of the land …, shall be deemed to be a mortgagee in possession.”
Under that provision two requirements had to be complied before the Court could make an order for possession: the principal money had to have become due; and the applicant had to be registered as the owner of the Charge on the relevant folio. If both requirements were fulfilled, the Court was empowered to make an order for possession if it considered it “proper” to do so
“A wife who has been induced to stand as a surety for her husband’s debts by his undue influence, misrepresentation or some other legal wrong has an equity against him to set aside that transaction. Under the ordinary principles of equity, her right to set aside that transaction will be enforceable against third parties (e.g. against a creditor) if either the husband was acting as the third party’s agent or the third party had actual or constructive notice of the facts giving rise to her equity . . . The doctrine of notice lies at the heart of equity. Given that there are two innocent parties, each enjoying rights, the earlier right prevails against the later right if the acquirer of the later right knows of the earlier right (actual notice) or would have discovered it had he taken proper steps (constructive notice). In particular, if the party asserting that he takes free of the earlier rights of another knows of certain facts which put him on inquiry as to the possible existence of the rights of that other and he fails to make such inquiry or take such other steps as are reasonable to verify whether such earlier right does or does not exist, he will have constructive notice of the earlier right and take subject to it.”
“Where a spouse without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse … the purported conveyance shall be void”.
Ben: Quotation from judgment (courtesy of the Courts Service of Ireland):
“… I find it impossible to agree with the proposition that, in proceedings for possession of a primary residence by way of enforcement of a mortgage or charge to which the Current Code applies, which comes before the court for hearing after the Current Code came into force, the plaintiff does not have to demonstrate to the Court compliance with the Current Code. To take what is perhaps the best known provision of the Current Code, the imposition of a moratorium on the initiation of proceedings, which is now contained in provision 47 of the Current Code (and which was also to be found in the earlier codes, although the moratorium period in the case of the earliest code was six months, rather than twelve months), surely a court which is being asked to make an order which will, in all probability, result in a person being evicted from his or her home, is entitled to know that the requirement in provision 47, which has been imposed pursuant to statutory authority, is complied with.”
8. Where a defendant wishes to enter an appearance to contest the jurisdiction of the Court for the purposes of Article 24 of either Regulation No. 44/2001 or the Lugano Convention, he may do so by entering an appearance in Form No. 6 in Appendix A, Part II.