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The Sheriff Principal of South Strathclyde, Dumfries and Galloway has today recalled a sheriff's interlocutor which had refused a homeowner's Minute for Recall of Decree as incompetent, upon the basis that she had previously appeared in person at court in her mortgage repossession case. The general practice and understanding in Scotland was that a defender in a mortgage repossession action could only Minute for Recall of Decree where they had never appeared or been represented in earlier court proceedings, in relation to the requirements of section 24D(2)(b) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (as inserted by the Homeowner and Debtor Protection (Scotland) Act 2010).
Section 24D of the 1970 Act provides that:
24D Section 24(1B) proceedings: recall of decree
(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—
(a)
the creditor;
(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);
(c) an entitled resident, but only if the entitled resident did not make an application under section 24B(1) in the proceedings.
(c) an entitled resident, but only if the entitled resident did not make an application under section 24B(1) in the proceedings.
In the case of Leeds Building Society v. H, the defender had appeared at the first calling of her case in court in February 2013 at which time the proceedings were continued ex proprio motu (at the instance of the court) to monitor repayments; the case was then continued to two further dates in May 2013, at which times the defender did not appear, nor was she represented.
The lender sought and obtained decree in the defender's absence at the end of May 2013. The defender then made payments over the next two years - and the lender did not enforce the court's decree whilst payments were made - before the defender fell into financial difficulties at which time the lender sought to enforce its decree to eject and enter into possession of the home.
The defender then contacted Govan Law Centre (GLC) and CHAP's Ayrshire Homelessness and Prevention Project (AHAP) who lodged a Minute for Recall of Decree upon her behalf. After the Minute was dismissed as incompetent, GLC pursued an appeal upon the defender's behalf.
Sheriff Principal Abercrombie Q.C. accepted the appellant's submission that in the particular circumstances of this case, a purposive interpretation of section 24D(2)(b) meant that the homeowner was entitled to seek a minute for recall of decree; if the Scottish Parliament had intended that a defender could not recall decree where they had appeared "at any stage of the proceedings" it would have said so. The defender had not appeared when decree was granted.
The Sheriff Principal found that the sheriff had erred in law in her interpretation of section 24D(2)(b); recalled the sheriff's interlocutor; allowed the Minute for Recall; fixed a Rule 18.3 hearing; and required parties to expedite a resolution of the case.
Aberdein Considine's Ms Milne, Solicitor appeared for the Respondents and Pursuers; GLC's Mike Dailly, Solicitor Advocate, appeared for the Appellant and Defender.
