Credit & Mercantile Plc v Feliciangela Marks

Credit & Mercantile Plc v Feliciangela Marks

The existence of a sub-charge does not divest or suspend the principal mortgagee’s right to possession unless the contractual documents or statutory provisions expressly provide for such transfer or suspension. In this case, the sub-charge did not transfer or suspend the respondent’s right to possession, and the respondent was entitled to possession under the facility letter and principal charge.

Parties
Claimant/respondent: Credit & Mercantile Plc; Defendant/appellant: Feliciangela Marks
Jurisdiction
England and Wales
Judgment Date
13 May 2004
Procedural Posture
Civil Appeal / Appeal From County Court Order (possession) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Mortgages, Sub Charges, Possession Proceedings, Registered Land, Statutory Interpretation
Property Law Land Law Banking Law Mortgages Sub Charges Possession Proceedings Registered Land Statutory Interpretation

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Parties

Credit & Mercantile Plc

Claimant/respondent

Feliciangela Marks

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From County Court Order (possession) to Court of Appeal

Legal Issues

  1. 1 Whether the existence of a sub-charge divests or suspends the principal mortgagee’s right to possession against the mortgagor
  2. 2 Whether the contractual documents or statutory provisions transfer or suspend the right of possession to the sub-chargee

Ratio Decidendi

The existence of a sub-charge does not divest or suspend the principal mortgagee’s right to possession unless the contractual documents or statutory provisions expressly provide for such transfer or suspension. In this case, the sub-charge did not transfer or suspend the respondent’s right to possession, and the respondent was entitled to possession under the facility letter and principal charge.

Court Disposition

Appeal dismissed

Orders

  • Appellant's appeal is dismissed
  • Respondent may add its costs of the appeal to its security; if insufficient, Appellant to pay Respondent’s costs, assessed as mortgagee’s costs on an indemnity basis if not agreed, with time for detailed assessment extended to 3 months after realisation of the security