Mortgages

Question 1

Cukurova

Answer 1

A security right NOT a property right

Question 2

Clough Mill

Answer 2

Retaining ownership of goods till paid is not a security right because they had the right before the buyer came along

Question 3

Four Maids v Dudley

Answer 3

Right to possession ‘as soon as the ink dries’

Question 4

Thornborugh v Baker

Answer 4

“once a mortgage always a mortgage”

Question 5

Jones v Mortgan

Answer 5

Idea that M’ee can purchase the property is offensive to the entire nature of a mortgage

Question 6

Credit Lyonais v Burch

Answer 6

The courts protect the mortgagor

Question 7

Financial Services & Market Act

Answer 7

If C’s right arises under a “regulated mortgage contract” C can only enforce rights if authorised by the FCA

• 1st Legal mortgage
• at least 40% is used as a dwelling house
• Sourcebook for standards

Question 8

Ultrafame v Fielding

Answer 8

equity of redemption arises as soon as mortgage begins

Question 9

Waring v London

Answer 9

If purchaser knew about M’ee’s breach then the purchaser may not be protected (this is hard to support)

Question 10

Palk v Mortgage Services Funding

Answer 10

• Equitable doctrine that ensures M’ee only uses the rights for purpose of security
• “Creditor can protect his own interests, but must not conduct himself in a way which unfairly prejudices the mortgagor”
• cannot wait to sell the house, because interest would increase
• M’or wants to sell the house, so creditor must not not sell

Question 11

Cuckmere Brick

Answer 11

Purchaser is not a trustee, but must act with duty of good faith (can act in his own interests)

Question 12

Cuckmere Brick

Answer 12

Purchaser is not a trustee, but must act with duty of good faith (can act in his own interests)

• only a breach of contract if he fails to take obvious steps
• reasonable market price achieved

Question 13

SCB v Walker

Answer 13

obtain the best price reasonably obtainable

Question 14

Micheal v Miller

Answer 14

• No obligation to sell fixtures separately (lavender plants)
• Price just has to be within a reasonable bracket
• If they didn’t do it in a public auction then courts consider steps that M’ee took to sell property

Question 15

Bishop v Blake

Answer 15

• choose a method of achieving sale most likely to achieve best price
• M’ee failed to put property for auction and advertise sufficiently, so M’ee pays the price of difference

Question 16

Meah v GE Money

Answer 16

If price did not drop below “Reasonably obtainable” but my did not take proper steps there is no liability to m’or

Question 17

Mercentile v Clarke

Answer 17

Duty is only owed to M’or

- if Debtor agreed to sell at lower price, he is estopped from relying on breach of duty

Question 18

Horsham v Clarke

Answer 18

s. 36 is not available once the property is sold

- only for order of possession

Question 19

Middleborough Mortgage v Cunningham

Answer 19

m’or is likely to be able to repay sums within a reasonable period

Question 20

Norgan

Answer 20

should provide a detailed budget

Question 21

Bristoll & West BS v Ellis

Answer 21

M’or may propose a future sale as a means of repayment

Question 22

Cheltenham & Glouscester v Brooker

Answer 22

m’or may wish to remain in possession pending the sale

Question 23

Quenell v Maltby

Answer 23

Equity can restrain M’ee from taking possession whenever there is no justifiable reason or the possession
- because right to posssession is only available as a purpose of security so should only act on that right as a purpose of security

Question 24

Birmingham Citizen PPS v Caunt

Answer 24

Equity was and never should be in the hands of judges as a sword to attack any part of the security itself… the right to possession was an important part of that security (overruled Quenell)

Question 25

Birmingham Citizen PPS v Caunt

Answer 25

Equity was and never should be in the hands of judges as a sword to attack any part of the security itself… the right to possession was an important part of that security (overruled Quenell)

Question 26

Manchester CC v Pinnock

Answer 26

Exceptional cases - personal factors may be taken into account

Question 27

Abbey National v Cann

Answer 27

possession as a preliminary to sale

Question 28

Western Bank v Schlinder

Answer 28

to protect land and security

Question 29

White v City of London Brewery

Answer 29

a mortgagee in possession of the mortgaged premises is called to account strictly for any income generated by this possession