JUDGMENT OF SHERIFF PHILIP MANN IN CAUSA UK ACORN FINANCE Ltd AGAINST CHARLES ALEXANDER SMITH [2014] ScotSC 61 (16 July 2014)

JUDGMENT OF SHERIFF PHILIP MANN IN CAUSA UK ACORN FINANCE Ltd AGAINST CHARLES ALEXANDER SMITH [2014] ScotSC 61 (16 July 2014)

The pursuer, as creditor in the standard security, retains statutory rights of enforcement under the Conveyancing and Feudal Reform (Scotland) Act 1970, even after assignation of the personal obligation to a third party. The statutory right is distinct from the common law right, and the pursuer has title and interest to sue for remedies under the standard security, including serving a calling up notice and seeking ejection.

Citation
[2014] ScotSC 61
Parties
Pursuer: UK Acorn Finance Limited; Defender: Charles Alexander Smith
Jurisdiction
Scotland
Judgment Date
16 July 2014
Procedural Posture
Civil / Interlocutory Judgment on Preliminary Plea
Outcome
Defender's preliminary plea number 1 repelled; proof before answer allowed on preliminary plea number 2; cause continued for procedural hearing; expenses reserved.
Legal Topics
Standard Security, Title to Sue, Assignation of Rights, Heritable Creditor Remedies, Calling Up Notice, Ejection From Security Subjects
Property Law Secured Transactions Civil Procedure Standard Security Title to Sue Assignation of Rights Heritable Creditor Remedies Calling Up Notice +1 more

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Parties

UK Acorn Finance Limited

Pursuer

Charles Alexander Smith

Defender

Procedural Posture

Civil / Interlocutory Judgment on Preliminary Plea

Legal Issues

  1. 1 Whether the pursuer retains title to sue for enforcement of a standard security after assignation of the underlying personal obligation to a third party
  2. 2 Whether the pursuer is entitled to serve a calling up notice and seek ejection under the Heritable Securities (Scotland) Act 1894

Ratio Decidendi

The pursuer, as creditor in the standard security, retains statutory rights of enforcement under the Conveyancing and Feudal Reform (Scotland) Act 1970, even after assignation of the personal obligation to a third party. The statutory right is distinct from the common law right, and the pursuer has title and interest to sue for remedies under the standard security, including serving a calling up notice and seeking ejection.

Court Disposition

Defender's preliminary plea number 1 repelled; proof before answer allowed on preliminary plea number 2; cause continued for procedural hearing; expenses reserved.

Orders

  • Repels defender’s preliminary plea number 1 (no title to sue)
  • Allows proof before answer on defender’s preliminary plea number 2