Summary

Where a possession order had been suspended on the condition the mortgagor paid a monthly amount to clear his arrears as well as his current mortgage a judge was right to refuse an application to suspend the enforcement of the possession order when the mortgagor, who had consolidated his arrears with the outstanding balance, fell into further arrears.

Facts

(1) The events of 2008 involved the consolidation of the arrears with the outstanding capital with the consequential substitution of a loan for the original loan and an adjustment of the amount of the monthly instalment. However, the original mortgage deed was neither replaced nor discharged. The mortgage remained in force as a mortgage charging Z's property by way of security for the repayment of loans (see para.28 of judgment). (2) When suspending the possession order the court had jurisdiction, under the Administration of Justice Act 1970 s.36(3), to impose a condition that Z pay off his arrears. The condition comprised two elements necessary to avoid eviction; (a) Z had to pay off the arrears in monthly instalments; (b) in addition he had to pay the current mortgage instalments. The fact the arrears were discharged in their entirety by the consolidation was not enough if Z failed to comply with the second requirement. There was no basis on which it could be said that the condition was limited in time to the period allowed for the repayment of the arrears. The possession order was properly made and the judge was entitled to dismiss Z's application, Greyhound Guaranty v Caulfield Unreported April 9, 1981 CC (Leeds), andBradford & Bingley Plc v Harris Unreported November 6, 2003 CC (Leeds)approved and Halifax Plc v Taffs Unreported February 2, 1999 CA (Civ Div) considered (see paras 33-35, 37-38 and 42).

Appeal dismissed

Held

The appellant (Z) appealed against the dismissal of his application to suspend the enforcement of a possession order made in favour of the respondent bank (B). Z had executed a mortgage deed charging his house to B. In 2005, Z fell into arrears and B issued possession proceedings. A possession order was granted but suspended provided Z paid a specified monthly amount, in addition to his mortgage, to clear the arrears. In 2008 B agreed to consolidate Z's remaining arrears with the outstanding balance of the loan. Z fell into further arrears and applied to suspend enforcement of the possession order. B applied for a warrant of possession and Z applied for execution to be suspended. Z's applications were dismissed and his appeal dismissed. Z submitted that (1) the consolidation in 2008 discharged the possession order; (2) the possession order was ambiguous or wrong as it followed the entire life of the mortgage and as such was disproportionate and illegal.