The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The exercise of the power of sale did not mean that the original mortgage debt changed. The recovery of the original debt was governed by section 12 and section 20 together and was therefore twelve years. The recovery of the interest was governed by 20(5) and the period for claiming arrears of interest was six years.
Longmore LJ said: ‘Since the subsection refers to ‘the date on which the right to receive the money accrued’ it is much more natural to read the subsection as applying to mortgages existing on the date on which such right accrued.’
Judges:
Lord Justice Schiemann, Lord Justice Buxton and Lord Justice Longmore
Citations:
Times 09-Sep-2002, Gazette 03-Oct-2002, [2002] EWCA Civ 1181, [2003] 1 WLR 284
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – In re McHenry CA 1894
The court considered the effect of the Limitation Acts on the rights of a secured creditor where there was an express shortfall provision in a mortgage deed. There was an express promise by a mortgagor to pay the difference on realisation of the . .
Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Cited – Rudge v Richens 1873
The mortgagee of land had entered into possession, and sold the property. He sought a declaration that he remained entitled to the balance due on the loan over and above the proceeds of sale. The defendant replied that he was not liable since the . .
Cited – Grant (Gordon) and Co v Boos HL 1926
The mortgagee had entered into possession, and then, with the consent of the court, itself bid at the auction and succeeded in purchasing it. It later resold the property for a price above the auction price. The borrower resisted an action for the . .
Cited – Sutton v Sutton 1882
A mortgage deed contained an express covenant to repay on demand the amount advanced. The principal sum and interest were secured by a mortgage of real property. A demand for payment was made, but not satisfied. An action was brought on the covenant . .
Cited – Barclays Bank v Beck CA 1952
The court drew a distinction between an action on a debt which had been but was no longer secured, and a debt which had not been secured. . .
Cited by:
Applied – Scottish Equitable Plc v Thompson and Another CA 6-Feb-2003
The mortgage deed, which was a second mortgage, did not contain any express covenant to repay the principal sum, but only for monthly interest instalments with no element of capital repayment, since the principal was to be paid from an insurance . .
Approved – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .
Lists of cited by and citing cases may be incomplete.
Limitation, Land
Updated: 06 June 2022; Ref: scu.175058
