Demanding the Loan The loan agreement will determine how and when the lender can demand repayment. A traditional term loan provides for an advance of monies and repayment over time in accordance with an agreed schedule of repayments. A term loan is committed in that it may not be demanded unless there has been an event of default. In recent […]
Enforcement Options for Mortgagee A mortgagee is entitled to exercise all rights at the same time. It can, for example, take court action for a judgment for payment of monies due and also take the action for possession of the secured property. The borrower is personally liable for the loan amount unless the mortgage or loan offer states that it […]
Overview I The appointment of a receiver is a mechanism for enforcement of security granted by a company under a floating charge or debenture. The receiver’s powers are determined by the debenture deed. A company receiver is similar to a fixed charge receiver. He is appointed “out of court” by a private deed in much the same way and has […]
Overview I The appointment of a receiver is a mechanism for the enforcement of security granted by a company by way of a fixed and/ or floating charge over its assets. The receiver’s powers are set out in the debenture deed. The 2014 Act provides statutory powers for receivers. A receiver may be appointed under a fixed charge, a floating […]
All Assets Charges A fixed and floating charge over all of the present and future assets of the company allows for the creation of a security over (and the appointment of a receiver) over most and in some cases, all of the company’s assets, business, and undertaking. This can be a very effective form of security as it allows the […]
General I The receiver is bound and empowered primarily by the terms of his appointment and the debenture/ mortgage under which he is appointed. He is entitled to act in the interests of the charge holder/ mortgagee. The interests of the company and other creditors are not his primary consideration. The receiver must not unnecessarily or recklessly damage the interests of third […]
Personal Liability I A receiver of the assets of a company is personally liable on any contract entered in the performance of his functions. This is the default position, whether the contract is entered in the name of the company or on his own behalf. Both the receiver and the company may be liable on the contract. This default position […]
Overview The appointment of a receiver is one of a number of means by which a mortgagee can enforce a mortgage. A receiver under a mortgage granted by an individual is often referred to as a “fixed charge” receiver. This is to distinguish this kind of receiver from a floating charge (or administrative) receiver who takes control of all of […]
General A court-appointed receiver is a flexible means of enforcing security. Court receivers perform a wide range of functions. A court receiver will only generally be necessary where the mortgagee does not have the power to appoint a receiver under its mortgage or by statute or where the nature of the security requires it. A receiver appointed by the court […]
Legal Mortgage and Registered Charge A mortgagee of unregistered title property is entitled to possession of the mortgaged property subject to whatever is stated in the mortgage deed. This is because the mortgagee has legal title to the land. The borrower has an equitable interest; his equity. The position is different with a registered charge over Land Registry title. It […]
Overview If vacant possession is required for the purpose of a sale and the property is not surrendered or possession cannot be obtained peaceably, then a court order for possession will be required. The mortgagee will invariably have a right to possession of the secured property under the mortgage deed where there has been a default. However, the mortgagee itself […]
The Power of Sale The Conveyancing Act provides a statutory power of sale for the mortgagee under a mortgage by deed. This power applies unless the contrary is stated or implied. This would be most unlikely in the case of a bank mortgage. Accordingly, a mortgagee can usually sell a mortgaged property without going to court. The main purpose of […]
The Power of Sale The Conveyancing Act provides a statutory power of sale for the mortgagee under a mortgage by deed. This power applies unless the contrary is stated or implied. This would be most unlikely in the case of a bank mortgage. Accordingly, a mortgagee can usually sell a mortgaged property without going to court. The main purpose of […]
Overview The method of enforcement of security will depend on the type of asset and on whether there is a written document setting out the terms of the security and dealing with enforcement. A court order may be required to sell and realise certain types of asset and in certain circumstances where the security has not been completed. Some types […]
Purpose of the Act The purpose of the Financial Services and Pensions Ombudsman Act 2017 is to: provide for the establishment of the Office of the Financial Services and Pensions Ombudsman provide for the appointment of persons to be the Ombudsman and Deputy Ombudsman extend the time limits for consumer complaints in relation to long term financial services to provide […]
Making of Complaints There are various types of complaints that may be made to the Ombudsman. A complainant can complain about the conduct relating to:- provision of financial services; offer of financial services; failure to provide financial services; financial loss or dispute in relation to certain pensions or any complaint received by the Ombudsman before establishment day that was outside […]
Appeals A party to a complaint before the Ombudsman may appeal to the High Court against a decision or direction of the Ombudsman. An appeal shall be made— not later than 35 days after the date of notification of the decision of the Ombudsman, or within such further period, as the court considers just and equitable in all the circumstances. […]
Complaints Procedure The Ombudsman may accept a complaint against a financial service provider or a pension provider that has initiated legal proceedings in relation to a matter to which the complaint relates, where the Ombudsman believes, based on reasonable grounds, that the financial service provider or the pension provider, as the case may be, has begun those proceedings in order […]