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 policy. The property was re-possessed and sold, leaving nothing for the second mortgagee after the first mortgage was repaid. At first instance ir was found that the relevant cause of action for the shortfall, which occurred on the sale by the mortgagee, was not an action on a specialty within s8, but a simple contract debt governed by section 5 of the 1980 Act and that the claim was statute barred after 6 years from the accrual of the cause of action.
Held: Bartlett applied. s20(1) was of no relevance, as the property had been sold and the principal sum was no longer secured by a mortgage on property. With no express covenant to repay the whole of the principal sum on a particular date or in a specified event, no date for the actual repayment of the principal sum could be identified in the mortgage deed. The claim for the shortfall was a simple contract debt, which became statute barred after 6 years.
Pill, Mummery, Latham LJJ
[2003] EWCA Civ 211, [2003] HLR 48
Bailii
Limitation Act 1980 8 5
England and Wales
Citing:
Applied – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
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 . .
Cited by:
Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – 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.
Land, Limitation
Updated: 13 January 2022; Ref: scu.181304
