Mortgages Flashcards
Cukurova
A security right NOT a property right
Clough Mill
Retaining ownership of goods till paid is not a security right because they had the right before the buyer came along
Four Maids v Dudley
Right to possession ‘as soon as the ink dries’
Thornborugh v Baker
“once a mortgage always a mortgage”
Jones v Mortgan
Idea that M’ee can purchase the property is offensive to the entire nature of a mortgage
Credit Lyonais v Burch
The courts protect the mortgagor
Financial Services & Market Act
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
Ultrafame v Fielding
equity of redemption arises as soon as mortgage begins
Waring v London
If purchaser knew about M’ee’s breach then the purchaser may not be protected (this is hard to support)
Palk v Mortgage Services Funding
- 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
Cuckmere Brick
Purchaser is not a trustee, but must act with duty of good faith (can act in his own interests)
Cuckmere Brick
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
SCB v Walker
obtain the best price reasonably obtainable
Micheal v Miller
- 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
Bishop v Blake
- 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
Meah v GE Money
If price did not drop below “Reasonably obtainable” but my did not take proper steps there is no liability to m’or
Mercentile v Clarke
Duty is only owed to M’or
- if Debtor agreed to sell at lower price, he is estopped from relying on breach of duty
Horsham v Clarke
s. 36 is not available once the property is sold
- only for order of possession
Middleborough Mortgage v Cunningham
m’or is likely to be able to repay sums within a reasonable period
Norgan
should provide a detailed budget
Bristoll & West BS v Ellis
M’or may propose a future sale as a means of repayment
Cheltenham & Glouscester v Brooker
m’or may wish to remain in possession pending the sale
Quenell v Maltby
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
Birmingham Citizen PPS v Caunt
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)
Birmingham Citizen PPS v Caunt
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)
Manchester CC v Pinnock
Exceptional cases - personal factors may be taken into account
Abbey National v Cann
possession as a preliminary to sale
Western Bank v Schlinder
to protect land and security
White v City of London Brewery
a mortgagee in possession of the mortgaged premises is called to account strictly for any income generated by this possession
