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Scottish repossessions – recall of decree

26th January 2018

Applications by borrowers for recall of decree (repossession order) have been subject to a wide variety of approaches since 2010. A new court ruling, however, may mean that the courts will start to take the same approach to these applications.

Various people can apply for recall including “the debtor, but only if the debtor did not appear and was not represented in the proceedings”. The application is made by filing a “minute for recall of decree” as it is called. This is a different process from the appeal procedure.

Morisons have had cases where a borrower had appeared in court and defended the case. Later the customer failed to appear and decree was granted. Before eviction, the borrower then applied for recall. The court granted that application for recall of decree, despite the earlier appearance. These decisions seemed contrary to the clear wording of the court rules. We also had a case where it was argued (unsuccessfully) that these rules are not Human Rights Act compliant.

In 2016 in Leeds Building Society -v- H it is understood that the sheriff principal ruled that unless the customer was present when decree was actually granted against him it would be possible for the debtor later to seek recall of decree, even if he had previously appeared. That is similar to the above cases which Morisons have had.

The September 2017 decision of the Sheriff Appeal Court in NRAM -v- Cordiner heralds a different approach. The borrowers had filed written defences and were represented by a solicitor at the first hearing. At the evidential hearing the borrowers, through their solicitors, consented to decree.  After that, there was fairly complicated procedure whereby the lenders later had the decree recalled. Eventually, however, decree was granted against the customers again.  The customers later filed a minute for recall of decree, which was refused. On appeal, the SAC ruled that, as the customers had appeared and been represented in the proceedings, they were prevented from using the recall process.  This was so because they had filed defences but, probably, also because they were represented at previous hearings.

Whilst perhaps not totally conclusive this ruling certainly will make it harder for a borrower who has previously appeared or been represented in court in a repossession case to obtain a recall of any decree later granted.

For more information about the matter please contact Brian Fairgrieve or David Forrester and they would be delighted to help.

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