A report of a County Court mortgage possession case has reached us, in which the secured lender’s behaviour resulted in a finding of abuse of process. The question was when (an if) an arrears payment had been received.
Blemain Finance Ltd v Andrea Jayne Ridley Darlington County Court 21 June 2012
Ms Ridley was the homeowner, with a mortgage of £44,000 (£39,000 outstanding) from 1999. She took out a further secured loan for £20,000 with Blemain Finance in 2006. She had fallen into arrears on payments and Blemain had obtained a possession order in 2006, then a warrant, which Blemain didn’t enforce on payment of the arrears. When arrears of some £1500 re-occurred, Blemain applied for a warrant of possession. The warrant was due to be executed on 19 June 2012 at 10.30 am.
On receiving the notice, on 15 June, then a telephone call from an agent of Blemain, Ms R’s evidence was that she went on to Blemain’s website on Sunday 17 June 2012 and paid off the outstanding arrears via a debit card, which had sufficient credit on it after a payment from her father. It was her uncontested evidence that the agent had told her on the phone, on 16 June, that once she’d paid on the website the account would ‘be up to date and fine’. The website was listed as a way to pay on Blemain’s letter giving the date of eviction. However, Blemain’s letter made no mention of Ms R’s right to apply to the Court for a stay of eviction at all.
The eviction went ahead on 19 June. Ms R called Blemain with the court bailiff present but was told there was ‘nothing they could do’.
Ms R applied for re-entry and stay of warrant on the same day. The application was heard on 21 June. It turned out that Blemain had returned Ms R’s payment on 20 June.
Blemain opposed the application on the basis that:
no payment had been received from Miss Ridley. [Blemain] acknowledged that Miss Ridley had offered to make an immediate payment of the full arrears but stated that [Belmain's advocate] was not authorised to accept any payment. Blemain Finance denied an abuse of process and stated that arrears were outstanding at the time the eviction took place. Furthermore, Blemain Finance argued that as they had gained possession of the property, the full balance on the mortgage had become due and there were no grounds for the Court to set aside possession.
The District Judge pointed out that this could be done by an order suspending the warrant and for payment fo the arrears.
However, on the evidence, it was clear that the payment by Ms R had been with Blemain before the execution of the warrant and remained with them until 20 June and that Ms R had been told if she made the payment before execution of the warrant, things would be fine.
Despite that, the Claimant was authorised to continue. This led to an abuse of process in this matter. Therefore the warrant is no longer executed, the Defendant is allowed back into he property and the matter will be re-listed to treat as an application to suspend the warrant.
It appears Blemain sought permission to appeal but that was adjourned until the further hearing.
At a further hearing on 25 June, the warrant was suspended and Blemain ordered to pay the costs of Ms R’s application and both hearings. Blemain did not seek permission to appeal.
Naughty Blemain Finance. Very naughty indeed.
Thanks to Diane Hall at Clark Willis for the details of the case.