This is an extract of our Halifax Building Society V. Thomas document, which we sell as part of our Commercial Remedies BCL Notes collection written by the top tier of Oxford students.
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HALIFAX BUILDING SOCIETY V. THOMAS FACTS Mr. Thomas obtained a 100 per cent. mortgage advance from the society to finance the purchase of a flat, 86, Lenton Manor, Nottingham. The purchase was completed on 17 February 1986 at a price of PS23,950. To obtain that advance, Mr. Thomas made fraudulent misrepresentations to the society as to his identity (he called himself George Robb, the name of an acquaintance) and as to his creditworthiness (he gave Mr. Robb's earnings as his own). In the course of 1986 Mr. Thomas made some payments of interest under the mortgage, but then defaulted. The society commenced proceedings against him in his assumed name and on 2 September 1987 obtained an order for possession. On 18 November 1988 the society learnt from the police the true identity of the mortgagor. Nevertheless, it proceeded with the sale of the mortgaged property. On 6 March 1989 an offer to purchase the flat was made. That offer was accepted and on 12 April 1989 the society as mortgagee sold the flat and recouped what was due to it under the mortgage. It placed the surplus, PS10,504.90, into a suspense account. On 31 May 1990 the society commenced these proceedings, seeking a declaration that it was entitled to retain the surplus for its own use and benefit. In criminal proceedings against Mr. Thomas, he was charged with, and pleaded guilty to, conspiracy to obtain mortgage advances by deception from lending institutions, for which on 2 August 1991 he was sentenced in the Crown Court at Nottingham to 21 months' imprisonment. A confiscation order was made in respect of, inter alia, the suspense account and accrued interest, the moneys in the account, including interest, then being PS12,101.11. On 15 October 1993 the C.P.S. obtained from Auld J. a charging order nisi in respect of Mr. Thomas's interest in the sum of PS12,101.11 and further interest held in the suspense account. On 28 October 1993 the judge dismissed the action. He said that the C.P.S. stood in the shoes of Mr. Thomas and if Mr. Thomas could not have recovered the surplus from the society there was no beneficial interest of his to which the charging order could attach. He held that if the society had a valid claim to take the surplus it was not an objection to that claim that the society had enforced its rights as mortgagee. QUESTION Where there has been a mortgage fraud, can the mortgagee, misled by fraudulent misrepresentations into making a mortgage advance, not only enforce its rights as a secured creditor to sell the mortgaged property and recover what it is owed but also, having
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