C - Cross claims
30/9/14
DAY v TIUTA INTERNATIONAL LTD [2014] EWCA Civ 1246
The judge below had been entitled to find that even if the borrower had a claim to rescind a mortgage for fraud, the mortgagee had a claim to be subrogated to an earlier charge which the advance had refinanced. It made no difference that the mortgagee’s charge was only voidable and not void from inception. Either way the mortgagee had been entitled to appoint receivers. It made no difference that the mortgagee had purported to do so under its own charge rather than the charge to which it was entitled to be subrogated. Even if the borrower had claims to set-off unliquidated damages for having been induced to enter into the mortgage by the mortgagee’s fraudulent misrepresentation as to its financial status, that did not provide the borrower with an equitable defence to the mortgagee’s claim based on its rights of subrogation.
6/2/14
THAKKER v NORTHERN ROCK (ASSET MANAGEMENT) PLC [2014] EWHC (QB)
Non-compliance with the Mortgage Conduct of Business Rules (MCOB) did not provide a defence to a mortgagee’s claim for possession.
22/7/13
BANK OF SCOTLAND PLC v HOSKINS (Ch)
The mortgagor claimed the mortgagee had wrongly failed to provide credit facilities to a company and as a result the mortgagor had a cross claim against the mortgagee. The court refused the mortgagee’s application to transfer possession proceedings against the claimant to the county court. Although a counterclaim does not usually affect a right to possession, here the cross claim was inextricably linked with the possession claim and the parties had originally agreed that both claims should be heard in the High Court.
12/7/13
DUNBAR ASSETS PLC v DORCAS HOLDINGS LTD [2013] EWCA Civ 864
A claim that a mortgagee had agreed to refrain from demanding repayment until development works had been undertaken was unlikely to amount to a defence to possession proceedings because it only provided a cross-claim for unliquidated damages. A judge can entertain a submission at the beginning of a trial that the pleadings disclose no defence, even if no strike out application has been made. But the judge must ensure the defendant has had a fair opportunity to respond and must hear submissions from the defendant. The judge’s failure to hear submissions in this case was a serious procedural irregularity justifying an appeal being allowed.
25/3/13
DEUTSCHE BANK (SUISSE) SA v KHAN [2013] EWHC 482 (Comm)
A bank had acted reasonably in rejecting a valuation of security as unsatisfactory in view of the hope value included which was uncertain and speculative. A satisfactory valuation was a condition precedent to the obligation to make facilities available, so the bank had been entitled not to make advances on the terms of the facility and to make partial advances on different terms. Claims against the bank of misrepresentation and mistake failed on the facts. The bank had not known of any mistake by the defendants, had not given any warranty as to returns available from investment products sold with the facility, and had not failed to advise of the adverse consequences of selling the products prior to maturity. Set-off of counterclaims was excluded by the facility agreement and such claims could not be a defence to the bank’s claim for possession of security. The exclusion of set-off was not unreasonable contrary to the Unfair Contract Terms Act 1977 nor did it, or a provision for payment of default interest, cause the relationship between the parties to be unfair within s 140A Consumer Credit Act 1974. The agreed terms did not create a significant imbalance within the Unfair Terms in Consumer Contracts Regs 1999.