MORTGAGES 1 LTD v. SHAIDA AHMED CHAUDHARY [2013] ScotSC 109 (14 November 2013)

MORTGAGES 1 LTD v. SHAIDA AHMED CHAUDHARY [2013] ScotSC 109 (14 November 2013)

The sheriff erred by granting decree by default without addressing the statutory requirements to consider the reasonableness of granting the application and the ability of the debtor and residents to secure alternative accommodation. The sheriff failed to reference or address the defender's answers and circumstances as required by law.

Citation
[2013] ScotSC 109
Parties
Pursuers and Respondents: Mortgages 1 Limited; Defender and Appellant: Shaida Ahmed Chaudhary
Jurisdiction
Scotland
Judgment Date
14 November 2013
Procedural Posture
Appeal (civil) / Appeal Against Decree by Default in Summary Application for Possession and Removal
Outcome
Appeal allowed; sheriff's interlocutor of 6 June 2013 recalled; cause remitted to By Order Roll for further proceedings; defender and appellant found liable in expenses of the appeal.
Legal Topics
Mortgage Repossession, Summary Application, Default Decree, Reasonableness Test, Alternative Accommodation, Legal Aid
Property Law Civil Procedure Mortgage Repossession Summary Application Default Decree Reasonableness Test Alternative Accommodation Legal Aid

Case Brief

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Parties

Mortgages 1 Limited

Pursuers and Respondents

Shaida Ahmed Chaudhary

Defender and Appellant

Procedural Posture

Appeal (civil) / Appeal Against Decree by Default in Summary Application for Possession and Removal

Legal Issues

  1. 1 Whether the sheriff erred in granting decree by default without considering statutory requirements under section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970
  2. 2 Whether the sheriff failed to consider the defender's circumstances and submissions regarding alternative accommodation and hardship

Ratio Decidendi

The sheriff erred by granting decree by default without addressing the statutory requirements to consider the reasonableness of granting the application and the ability of the debtor and residents to secure alternative accommodation. The sheriff failed to reference or address the defender's answers and circumstances as required by law.

Court Disposition

Appeal allowed; sheriff's interlocutor of 6 June 2013 recalled; cause remitted to By Order Roll for further proceedings; defender and appellant found liable in expenses of the appeal.

Orders

  • Recall of sheriff's interlocutor dated 6 June 2013.
  • Remit cause to sheriff's By Order Roll for further proceedings.