Friday, 7 December 2018

GLC secures recall of mortgage repossession decree despite defender having appeared in court: Santander UK plc v. P

Following the decision of the Sheriff Appeal Court in NRAM plc v. Cordiner last year, it is generally thought that a homeowner cannot recall a decree by a "Minute for Recall of Decree' where he or she had appeared in court, or been represented.  

This week, Govan Law Centre (GLC) was able to secure a recall of a mortgage repossession decree despite the homeowner having previously appeared before the sheriff.  A summary of the case is set out below. 

Mr P consulted Govan Law Centre through the Ayrshire Homelessness Prevention Project because his mortgage lender, Santander UK plc, had raised a repossession action against him. His mortgage had matured and the full balance had become due. His lenders had obtained decree for repossession. As a result, Mr P was facing homelessness.

Mr P had not attended the first hearing of the case, as his lenders’ solicitors had told him he did not need to, since they would ask for the case to be continued for him to get financial advice. Mr P attended the next hearing of the case personally, and he was given further time again by the Sheriff. Mr P was not aware of the next hearing date, and therefore did not attend. Unfortunately, at this hearing, decree was granted in his absence. Mr P had not been represented in the process, nor put forward any defence. 

Mr P instructed Govan Law Centre to lodge a Minute for Recall of Decree on his behalf. This was lodged and a hearing was held at Kilmarnock Sheriff Court. The Pursuers opposed the Minute for Recall on the basis of a recent decision of the Sheriff Appeal Court, in NRAM plc v Cordiner (2017) SAC (Civ) 27. They argued that the Minute for Recall was not competent on the basis of this decision. The Sheriff refused the Minute for Recall. 

Section 24D of the Conveyancing and Feudal Reform (Scotland) Act 1970 states: 

“(1) A person mentioned in subsection (2) below may apply to the court for recall of a decree granted on an application under section 24 (1B) of this Act

(2) Those persons are (…) (b) the debtor, but only if the debtor did not appear and was not represented in the proceedings on the application under section 24(1B); “

In Cordiner, the Defender had lodged defences, been represented at previous hearings, consented to decree, amongst various other procedural stages. On appeal, the Sheriff Appeal Court held that, as the Defender had appeared and been represented in the proceedings, she was prevented from using the recall process. 

Mr P instructed us to lodge an appeal of the Sheriff’s decision refusing the Minute for Recall on the basis that his case could be distinguished from Cordiner, and on the basis that the Sheriff’s decision was incompatible with his Convention Rights under the European Convention on Human Rights. 

Having regard to the reasoning in Cordiner, it was Mr P’s position that the question to be determined was whether in his case litiscontestation had occurred, in which case, the appellant would have been prevented from seeking a recall of decree. This was the case in Cordiner, which had a particularly extensive procedural history. This had not occurred in the present case, as confirmed by the Sheriff in her note. She stated “At no time did he offer any defence to the action”

Additionally, in Cordiner, the court was not persuaded that they required to fully consider the requirement to read down the relevant section of the legislation in line with the European Convention on Human Rights, as the defender had fully engaged in proceedings, having lodged pleadings and been represented in numerous hearings. This was not the case in the present proceedings, and Mr P submitted that the Appeal Court should fully consider these submissions, and read down the legislation to be compliant with his Convention Rights.

Before the appeal hearing was due to be heard in his case, Mr P’s lenders agreed to the decree being recalled. The appeal was therefore dropped, and the case referred back to the Sheriff court. There is an evidential hearing fixed. Mr P is proceeding through the Mortgage to Rent Scheme and hopes he will soon be in a position to discharge his liabilities to his lenders, and remain in his home. 

It certainly would have been beneficial for borrowers in general to have received some clarity from the Appeal Court about the position of Minute for Recalls being lodged in similar circumstances, where no formal defence has previously been tendered and decree in absence is granted. However, this is an extremely good result for Mr P. We urge anyone in similar circumstances to seek urgent legal advice. 

The defender and appellant was represented by GLC's senior solicitor, Laura Simpson, and Mike Dailly, Solicitor Advocate was instructed in the appellate proceedings. 


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Thursday, 20 September 2018

Govanhill Law Centre prevents “instant” eviction of family of EU citizens without notice in Glasgow

Govanhill Law Centre (GhLC) has prevented the instant eviction of a family of European Union (EU) nationals with four young children by lodging a sheriff court appeal earlier this afternoon seeking the suspension of the eviction.

Physical ejection from the property was scheduled to take place tomorrow at 10am in Govanhill. A sheriff at Glasgow Sheriff Court has now issued a court order to temporarily suspend the ejection, in order to give the family time to secure homeless or alternative accommodation.

The client had obtained the lease of a privately let flat in Govanhill, paying a deposit and rent, only to discover they had been duped.  There is a criminal practice in Glasgow of fraudsters breaking into vacant flats and falsely letting them out to vulnerable low paid EU workers. 

Our client’s case called in court yesterday on 48 hours notice (instead of the usual 21 days). Our client accepted she would have to leave the flat but asked for a little time to find alternative accommodation. The sheriff refused to do so and granted an immediate extract decree for eviction, and dispensed with the need to serve a charge for removing. The standard practice on decree for eviction is an occupier will have 28 days before eviction by sheriff officers.

The client’s solicitor, GhLC’s senior solicitor, Rachel Moon obtained instructions for Govan Law Centre’s Mike Dailly to draft an urgent Note of Appeal today. The Note of Appeal argued that the sheriff’s decree was unlawful as it was a disproportionate interference with the client’s right to respect for her private and family life, and her home, as safeguarded by Article 8 of the European Convention on Human Rights.

There had been no proper assessment of the proportionality of the granting of an “instantly enforceable” eviction decree as was required standing European human rights jurisprudence including the case of Kay v. UK (2012) 54 E.H.R.R.  Some key facts in the case were in dispute and there was no evidential inquiry.

The court had been made aware the family could not obtain homelessness assistance from the local council upon zero notice, given the need to ingather evidence to satisfy the various residency and work tests for eligibility, and would be destitute and homeless without some period of notice. Despite this, the sheriff had granted decree, which would be immediately enforced with no notice.

Following the sheriff’s order this afternoon, the family now have an opportunity to secure alternative accommodation with the help of Govanhill Law Centre.

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Thursday, 19 July 2018

Permission for homelessness petition for judicial review to proceed against Glasgow City Integration Joint Board (Glasgow City Health and Social Care Partnership)

Lady Paton has granted permission today for a petition to proceed for judicial review of a homelessness decision against the Glasgow City Integration Joint Board (GCIJB; also known as the 'Glasgow City Health and Social Care Partnership'). A procedural hearing has been assigned for 22 August, and a substantive hearing for 3 October 2018 at 10am in Zungunde v. Glasgow City Integration Joint Board.

The intentional homelessness decision was made by Glasgow City Council on behalf of the GCIJB. It is believed that this may be the first petition for judicial review in Scotland against an Integrated Joint Board with respect to its delegated statutory responsibilities and duties.

The GCIJB is a body corporate established by Order under section 9 of the Public Bodies (Joint Working) (Scotland) Act 2014 (the 2014 Act).  On 6 February 2016, the GCIJB assumed delegated duties and decision-making power under Part II of the Housing (Scotland) Act 1987 (the 1987 Act) in terms of section 1(5) of the 2014 Act, its Integration Scheme approved under section 7 of the 2014 Act, and The Public Bodies (Joint Working) (Integration Joint Board Establishment) (Scotland) Amendment Order 2016 (SSI 2016/2).

Although the GCIJB subsequently issued a Direction under section 26 of the 2014 Act for Glasgow City Council to carry out its functions under the Part II of the 1987 Act, the petitioner's position is that in terms of inter alia section 25(3) of the 2014 Act, the duties and powers under Part II of the 1987 Act rest with the GCIJB, and that Glasgow City Council act on the GCIJB's behalf.

The GCIJB is represented by the NHS Scotland Central Legal Office, the petitioner is represented by GLC's Mike Dailly, Solicitor Advocate.
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Thursday, 28 June 2018

Sheriff Appeal Court case on credit card debt & prescription scheduled for 23 August 2018

A fresh appeal diet before the Sheriff Appeal Court was assigned today by Sheriff Principal Turnbull in PRA Group (UK) Ltd v. MacPherson, for 23 August 2018.  The new diet will allow time for the appellant's civil legal aid application to be determined by the Scottish Legal Aid Board.

The appeal case deals with a novel point of Scots law, which potentially affects many consumer credit cases across Scotland, where old credit card debt has been sold on to UK and international debt-purchasing companies and then pursued through the Scottish courts.

The appellant's position is that court proceedings for debt were not raised until over five years from when his monthly credit card payment was last due. The claimant and creditor's position is that the starting point for prescription is after it serves a default notice under the Consumer Credit Act 1974, which was before the five year prescriptive period in Scots law.

The appellant believes that the creditor is conflating UK consumer credit law and the enforcement of credit agreements, with the Scots law of prescription. The appellant contends that credit card agreements clearly make "provision" for the date when the whole balance due is to be repaid, which is the date upon which a monthly payment has been missed.

The appellant is represented by GLC's Mike Dailly, Solicitor Advocate.  The creditor is represented by Brodies LLP.
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Monday, 14 May 2018

GLC meets Maggie Craig, Financial Conduct Authority's Head of Department, Scotland

Govan Law Centre (GLC) has had a very productive and helpful meeting with the Financial Conduct Authority's (FCA) new Head of Department, Scotland, Maggie Craig in Govan this morning. Before joining the FCA, Maggie held a variety of roles at the Association of British Insurers (ABI) including Director of Scottish Affairs, Acting Director General and, latterly, Director of Financial Conduct Regulation.

Maggie set out the new business strategy for the FCA's increased presence in Scotland, which now employs 101 people in Edinburgh's Fountainbridge, as well as the new opportunities for Scotland's growing 'fintech' (financial technology) industry. The financial services sector contributes around £8bn to the Scottish economy.

Principal Solicitor, Mike Dailly set out GLC's hope and aspiration for fintech solutions to revolutionise the free money advice sector in Scotland, by utlising opening banking developments from the revision to the EU's Payment Services Directive ('PSD2') to streamline debt advice for both advisors and consumers. A good example of some of the opportunities for fintech solutions to help and empower consumers were set out in a Money Advice Service 'Financial Capability Lab' report last week.

Mike also discussed a number of concerns around some particular high cost credit card products, and mortgage lenders fees and charges, as well as recent developments with respect to potentially prescribed credit debt cases in Scotland, and excessive and punitive interest charges in cases where secured debt has been sold on.  GLC agreed to keep in touch with Maggie on relevant areas of consumer interest in Scotland.
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