Royal Bank of Scotland v Jamieson: Another Brick in the Protective Framework for Residential Debtors in Enforcement of Standard Securities
|01 September 2020
|01 September 2020
The decision of the Sheriff Appeal Court in
The decision can be framed in the context of the recent legislative trend toward protection for (particularly residential) debtors. Although the decision may produce difficulties in practice for creditors seeking to enforce standard securities, the outcome is justified by the policy objective of preventing debtors from unjustly being deprived of their homes.
Where a debtor under a standard security defaults on repayment of the secured loan, a creditor who wishes to enforce repayment by exercising their remedies under the security must first call up the security using the section 19 procedure.
Service of the calling-up notice is regulated by section 19(6) of the 1970 Act. Under this provision, the calling-up notice must be served either by personal or recorded delivery or registered post to the person upon whom it is wished to be served (the debtor). However, sometimes delivery to the debtor is not possible, so section 19(6) provides for service to be made instead on the Extractor of the Court of Session in enumerated circumstances. These are where the address of the debtor is unknown, where it is unknown whether the debtor is alive, or “if the packet containing a calling-up notice is returned to the creditor with an intimation that it could not be delivered”.
Ross Jamieson granted a standard security over his home to the Royal Bank of Scotland Plc (“RBS”) in 2004. After he fell into arrears in relation to repayments of the debt secured by the standard security, RBS sought to enforce it. They did so by submitting applications to the Sheriff Court on multiple occasions under section 24.
RBS had sought to serve a calling-up notice on Jamieson by recorded delivery service. However, delivery had failed. RBS had been made aware of this by the “Track and Trace” portal on the Royal Mail website stating that there had been “no answer” upon attempt of delivery.
Jamieson submitted that RBS was not entitled to serve on the Extractor since none of the requirements justifying this under section 19(6) were fulfilled.
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