Tuesday 2 August 2011

GLC backs Scottish Government's position on RBS plc v. Wilson

Govan Law Centre (GLC) supports and welcomes the Scottish Government's decision to take no legislative action in light of the UK Supreme Court's decision in RBS plc v. Wilson and others as the 'right thing to do' in the circumstances. 

While the majority of consultees alleged that the implications of this case would be negative, GLC believes there is no empirical evidence to back up such assertions, and that the Scottish Government was correct to advocate no law reform response, particulary so in the current climate of forebearance and difficult economic circumstances.

GLC's Principal Solicitor, Mike Dailly said: "Calling-up notices are the equivalent of 'default notices' for consumer credit debts and they serve a useful purpose in enabling the debtor to address problems before litigation can be raised. The only difference with a mortgage is the fact it is secured on heritable property and it is therefore entirely consistent to support the requirement for lenders to serve calling-up notices prior to entitlement to raise litigation. It is in the interests of both parties, lender and borrower".

"It is also instructive to note that some lenders and their solicitors did generally serve calling-up notices and did so as a matter of good practice without any difficulty".

"GLC rejects the Council of Mortgage Lenders (CML) assertion that the Wilson decision may not be in the 'best interests' of borrowers. For those with no prospects of retaining ownership or occupancy of their homes a calling-up notice can act as a spur to selling their property with or without their lenders assistance, and for those that need more flexibility to pay their debts the calling-up notice acts as a spur to take advice to set up a repayment solution which the lender would have to explore in any event in terms of the Pre-Action Requirements'.

"What the CML calls 'delay' is in fact a sensible and reasonable opportunity for practical solutions to be brokered and found to enable the mortgage to be paid, arrears cleared and homeowners to retain their homes. GLC is pleased the Scottish Government has acted to safeguard the rights of vulnerable homeowners in Scotland".

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