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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ocwen Ltd v Quinn [2002] EWCA Civ 110 (22 January 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/110.html Cite as: [2002] EWCA Civ 110

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBOROUGH COUNTY COURT
(HIS HONOUR JUDGE SPITTLE)

		Royal Courts of Justice Strand London WC2 Tuesday, 22nd January 2002

Tuesday, 22nd January 2002

1. LORD JUSTICE MANCE: This is the adjourned hearing of an application for permission to appeal by the defendant, Mrs Quinn. She sought unsuccessfully to vary the terms on which possession orders were made against her at the instance of two associated companies who were mortgagees of her house. Her application was struck out by District Judge Bailey on 22nd February 2001; and her appeal (by permission to appeal granted on 28th April 2001) was dismissed by His Honour Judge Spittle on 8th June 2001 on terms that the claimant have leave to issue a warrant of exclusion on or before 8th August 2001.
2. The transcript of the hearing before His Honour Judge Spittle indicates that the claimant was prepared to agree to this order, which gave her an additional two months to sort out alternative finance to pay off the outstanding loans. Nonetheless, she now seeks permission to appeal in order to seek a variation of the original possession order. It must be questionable whether she can do this, but I do not need to determine that today.
3. The matter came before Ward LJ on 5th November 2001. He took what he referred to as the "unusual course" of adjourning it and staying the execution of the orders pending the resumed hearing for two reasons. First, it appeared to him that the lenders were in liquidation; and second, he was "pretty appalled" at the size of the outstanding loans being claimed. He could not understand how such sums could have accumulated. He told the claimant to go along to the Citizens Advice Bureau to seek to ascertain whether or not the amount was correct. He also said of the application "it can be reserved to me". That injunction appears to have been overlooked by the Court of Appeal office in relisting the matter before me today.
4. On Friday last week the applicant applied for an adjournment of today's hearing on the grounds that there were outstanding inquiries that she still wished to make and that she had been ill. She furnished a bundle which shows that the Citizens Advice Bureau was able to give her some assistance and background in relation to the group of companies to which the mortgagees belonged, and also that she or the Citizens Advice Bureau have done a number of company searches. I refused the application for an adjournment on paper. However, the applicant has not attended at court today. The question arises what to do. I could take the view that her application should simply be dismissed. Having read the papers I see little or nothing in it apart from one possible point to which I will come.
5. The supposed winding-up is not established by the papers now available. The mortgagee under the first unregulated loan dated 8th October 1986 was and continues to be the claimant in the action brought on the first loan; that is City Mortgage Corporation Limited. The mortgagee under the second loan, dated 16th May 1997, was J & J Securities Limited; but notice of an assignment in April 1998 to the claimant in the second action, Ocwen Limited, was given in June 1998.
6. It is true that there is a somewhat mysterious document from Blachford's Solicitors dated 28th May 1998 bearing the reference of the second loan, and addressed, it would seem probably to the applicant, purporting to give notice of a transfer of the benefit of the respective interest of Mortgage Management Limited and Greenwich International Limited in the mortgage over her house to Mortgage Management Limited. That does not appear to make any sense in the overall context at all. As I have said, the other documentation suggests a straightforward assignment in April 1998 by J & J Securities Limited to Ocwen Limited of which notice was given in June 1998. Both City and Mortgage Corporation Limited and Ocwen Limited continue to exist. J & J Securities Limited were dissolved on 24th July 2001, but that is of no significance if they previously assigned the mortgage, as appears, to Ocwen Limited. It is true, as the applicant has strongly emphasised, that the papers also refer to companies handling the mortgages. They were initially City Mortgage Services Limited, and then, as the claimant was told in April 1998, Ocwen UK Servicing Limited which, as she was again told in September 2000, changed its name to C M R Loan Servicing Limited. City Mortgage Services Limited was dissolved on 15th February 2000; but again that is of no significance, since they were simply a handling company and not the mortgagees.
7. Another point which I mention in parenthesis is it does not seem to me really made out that the mortgagees have shown no real interest in this litigation. At the present stage, of course, they are not party to the application for permission to appeal, but I see no reason to doubt that they wish its early resolution.
8. The possible point which it appears to me that the applicant has relates to the amount outstanding. This, it seems to me, might have or have had some relevance to the question whether a stay of the order for possession should be given and on what terms in particular. When the applicant completed her defence to the action based on the first loan she ticked a box "no" which appears in relation to the question "Do you want the court to consider whether or not the terms of your original loan agreement are fair?" Probably, although the relevant page is missing from the bundle, she answered the question in the same way in her defence to the second action. However, it always seems to have been her complaint that the amount claimed was excessive, at least in the sense that she could not pay it. Ward LJ was troubled, as I am, as to how so large an amount as the claimants assert could have accumulated. That, in turn, could go to the feasibility of the applicant paying off or arranging for the payment of the loans, which is the essential question that the court has to consider when identifying what (if any) terms to impose when granting an application to stay a possession order: see for example, the 1999 White Book note 88/5/13, and the current 2001 Civil Procedure White Book sc 88.5.7.
9. The material now helpfully produced to the applicant by the Citizens Advice Bureau shows that the present lending group has been criticised for applying differential interest rates, in other words rates increasing radically following any default; and reportedly has had one adverse judgment against it on the grounds of the exorbitance of the redemption penalty it was requiring - that was in December 1997, before Master Ellison. An action group, the National Association of Mortgage Victims exists and is canvassing to hear from borrowers from the present lending group.
10. Here, the first loan, now produced in the additional bundle, did involve differential charging, whereby following any default the monthly payments required increased from £365.18 to £577.89. The second loan, however, appears, at least on its face, not to involve differential charging.
11. If the applicant had defended the present proceedings by cross-applying under sections 138 to 139 of the Consumer Credit Act 1974 it is, I would suppose, possible, therefore, that she might have had some prospects. It is conceivable that she might even now at this late stage take, or be able to seek to take, some steps in that direction.
12. I am in all these circumstances unwilling simply to dismiss this application now at this stage. I very much doubt if the applicant's non-attendance is because she wishes to abandon her attempt to appeal. She may not even have received the message refusing an adjournment. Attempts to contact her by telephone have revealed that her north of England address no longer has the telephone number which she previously furnished to the court. Whatever the reason that she is not here today, I propose to adjourn the matter further. It can then come on before Ward LJ, as he in fact ordered when he reserved the matter to himself. The matter must, however, clearly be brought to a conclusion shortly, in fairness to the respondents as well as to the applicant, particularly bearing in mind that the respondent is not party to the present application. I shall order that it come on not before two weeks from the present date. I will order that the Court of Appeal office should inform the applicant about the procedure for obtaining advice and representation pro bono. If there is anything at all in the point that Ward LJ and I have identified it needs to be properly thought through with legal advice and properly advanced on the resumed hearing. The applicant faces obvious difficulties in pursuing such a point at this late stage in the proceedings, and the court will be grateful to be assisted, therefore, by any representation which she may obtain.
(Application adjourned; no order for costs).