Nautch Ltd & Ors v Mortgage Express & Anor [2012] EWHC 4136 (Ch) (23 November 2012)

Nautch Ltd & Ors v Mortgage Express & Anor [2012] EWHC 4136 (Ch) (23 November 2012)

Receivers' appointments were valid where two months' arrears existed; invalid appointments render mortgagee and receiver jointly and severally liable for proven losses. Acceleration and fee clauses in mortgage terms are enforceable and not subject to UCTA s.3(2)(b). Receivers must exercise independent judgment and owe a duty of care to mortgagors. Claims for overcharging of interest and litigation fees largely fail; only specific proven losses from invalid appointments or wrongful charges are recoverable.

Citation
[2012] EWHC 4136 (Ch)
Parties
Claimants: Nautch Limited & Others; First Defendant: Mortgage Express; Second Defendant: Walker Singleton (Property Management) Limited
Jurisdiction
England and Wales
Judgment Date
23 November 2012
Procedural Posture
Civil / Final Judgment After Trial
Outcome
Claims for wrongful appointment and overcharging dismissed except for specific proven losses; damages awarded for invalid appointments and wrongful charges as specified.
Legal Topics
Mortgage Enforcement, Appointment of Receivers, Unfair Contract Terms Act 1977, Interest Charges, Receivers' Duties, Damages for Invalid Appointment, Trespass, Litigation Costs
Property Law Contract Law Equity Mortgage Enforcement Appointment of Receivers Unfair Contract Terms Act 1977 Interest Charges Receivers' Duties +3 more

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Parties

Nautch Limited & Others

Claimants

Mortgage Express

First Defendant

Walker Singleton (Property Management) Limited

Second Defendant

Procedural Posture

Civil / Final Judgment After Trial

Legal Issues

  1. 1 Validity of receivers' appointments under mortgage terms
  2. 2 Effect and scope of the Arrears Agreement
  3. 3 Application of Unfair Contract Terms Act 1977 to mortgage conditions

Ratio Decidendi

Receivers' appointments were valid where two months' arrears existed; invalid appointments render mortgagee and receiver jointly and severally liable for proven losses. Acceleration and fee clauses in mortgage terms are enforceable and not subject to UCTA s.3(2)(b). Receivers must exercise independent judgment and owe a duty of care to mortgagors. Claims for overcharging of interest and litigation fees largely fail; only specific proven losses from invalid appointments or wrongful charges are recoverable.

Court Disposition

Claims for wrongful appointment and overcharging dismissed except for specific proven losses; damages awarded for invalid appointments and wrongful charges as specified.

Orders

  • Mortgage Express and Walker Singleton jointly and severally liable for damages arising from invalid appointments as specified.
  • Specific sums ordered to be removed from mortgage accounts or paid as damages for wrongful charges.