SWIFT ADVANCES PLC against JAMES BAIN MARTIN & Ors [2015] ScotCS CSIH_65 (04 September 2015)

SWIFT ADVANCES PLC against JAMES BAIN MARTIN & Ors [2015] ScotCS CSIH_65 (04 September 2015)

Swift Advances PLC complied with statutory pre-action requirements through extensive correspondence and reasonable efforts to reach agreement. The debtors were unable to propose any arrangement to fulfil their obligations in full. It was reasonable to grant Swift possession and power of sale to test the open market, as the statutory scheme does not require acceptance of a partial payment proposal and the best price is likely achieved through open market sale.

Citation
[2015] ScotCS CSIH_65
Parties
Pursuer and Respondent: Swift Advances PLC; Defenders and Appellants: James Bain Martin and Others
Jurisdiction
Scotland
Judgment Date
04 September 2015
Procedural Posture
Appeal / Judgment on Appeal From Sheriff Principal
Outcome
Appeal refused
Legal Topics
Repossession, Standard Security, Pre Action Requirements, Reasonableness Test, Mortgage Arrears
Property Law Civil Procedure Banking and Finance Repossession Standard Security Pre Action Requirements Reasonableness Test Mortgage Arrears

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Parties

Swift Advances PLC

Pursuer and Respondent

James Bain Martin and Others

Defenders and Appellants

Procedural Posture

Appeal / Judgment on Appeal From Sheriff Principal

Legal Issues

  1. 1 Whether Swift Advances PLC complied with pre-action requirements under section 24A of the Conveyancing and Feudal Reform (Scotland) Act 1970 as amended
  2. 2 Whether it was reasonable in all the circumstances to grant Swift possession and power of sale under section 24(5) of the 1970 Act

Ratio Decidendi

Swift Advances PLC complied with statutory pre-action requirements through extensive correspondence and reasonable efforts to reach agreement. The debtors were unable to propose any arrangement to fulfil their obligations in full. It was reasonable to grant Swift possession and power of sale to test the open market, as the statutory scheme does not require acceptance of a partial payment proposal and the best price is likely achieved through open market sale.

Court Disposition

Appeal refused

Orders

  • Court adheres to the interlocutors of the sheriff and sheriff principal
  • Swift Advances PLC granted possession and power of sale over the property