Practical Tips for Mortgage Lenders – Volume 1   Professional Negligence Following the sale of the property, there is a shortfall. We cannot make a recovery from the borrower, are there are any other routes of recovery? If you have a shortfall, and your borrower is impecunious, the good news is there is another route [...]

Many lenders are investigating claims against their former professional advisors, some on loans which fall well outside the initial 6yr limitation period. Whilst claims can be brought outside that time period, this case is an illustration that defences are available and should encourage lenders to conduct their investigations as early as possible.

The latest RK Employment Case Law Update considers a recent decision of the Supreme Court regarding indirect age discrimination and examines the impact of workplace rules that have discriminatory effects.

The West Tankers appeal is of interest to all those handling international insurance business. It illustrates that the English Court will uphold and enforce an arbitration award.

A recent High Court decision on the recoverability of losses following the assignment of a cause of action will be of interest to those involved in the buying and selling of debt. Once again, the Courts have not been persuaded by technical arguments which would result in a wrongdoer escaping liability.

This RK Update considers the recent case of Jet2.com Ltd v Blackpool Airport Ltd in which the High Court was yet again asked to interpret a party’s contractual obligation to use “best endeavours” and “all reasonable endeavours”

The enforceability of personal guarantees, unfair prejudice to minority shareholders and the rule against “double proof” in the context of guarantees and indemnities are just three of the topics considered in the second edition of Rosling King LLP’s biannual newsletter, News at 10OB

The High Court recently granted summary judgment, in two separate but related actions, in favour of a licensor of certain trade marks following protracted litigation deriving from the same trade mark licensing agreement. This latest RK Update examines the High Court Decision.

This RK Update examines the recent case of Lloyds TSB Bank Plc v Markandan & Uddin in which a firm of solicitors were found liable to a claimant bank for breach of trust caused by advancing loan monies to fraudsters who had impersonated a London branch of a regional firm of solicitors.

As the current raft of professional negligence claims against valuers continues, the recent High Court decision in Paratus AMC Limited and another v Countrywide Surveyors Limited has considered a number of important issues relevant to such claims, including the permissible margin of error, the impact of securitisation and contributory negligence.

Rosling King LLP recently acted on behalf of Norwich and Peterborough Building Society (the “Society”) in connection with its successful opposition to a second appeal by its personal guarantor (the “Guarantor”) against a Bankruptcy Order made in response to the Society’s bankruptcy petition.

A firm of solicitors were found liable to a lender for the mortgage advances after they had paid away the funds to a non-existent firm of solicitors purporting to act for the purchasers. It was found that they did so in breach of trust and in breach of their retainer.

In the current economic environment, mortgage arrears are increasing and lenders are taking action to enforce their security by taking possession of mortgaged properties. The tipping point for a lender is of course the performance of a mortgage account and whether a borrower has maintained the monthly instalments due under his mortgage.

Since the onset of the economic downturn, various claims brought against property valuers have appeared before the Courts. Most of these cases have concerned valuations of residential property. This RK Update looks at the case of Capita v Drivers Jonas, the first major professional negligence case against a valuer of commercial property to be decided since the downturn began.

Marshalling is a remedy which entitles a creditor to use assets that are secured in favour of another creditor to discharge a debt owed by the same debtor provided that a number of circumstances are met. The recent Court of Appeal decision in Szepietowski v The Serious Organised Crime Agency serves as a useful reminder of the situations in which a creditor may seek to invoke the equitable doctrine of marshalling.

The recent relocation to 10 Old Bailey sees the arrival of a new newsletter. This first edition of “News at 10OB” contains articles on a range of topics including a reminder of the pitfalls for lenders when taking personal guarantees, an analysis of whether the much vaunted rise in securitisation-related case law is becoming a reality and a look at how far employers should go to protect the religious beliefs of employees. This edition will also examine some of the latest professional negligence cases to emerge.

Entire agreement provisions are included in all forms of commercial contracts so as to prevent a contracting party from alleging that statements and representations made during the pre-contract stage and which were are not expressly incorporated into the written agreement constitute additional terms to the parties’ legal relationship.

Most commercial and residential leases or transfers will contain an express clause which requires the tenant or seller to give “vacant possession” at the end of the term or on completion. Should they fail to do so the consequences can be costly.

Part II of the Housing Grants, Construction and Regeneration Act 1996 (the “1996 Act”) currently prescribes the payment mechanics for all construction contracts. The provisions of Part 8 of the Local Democracy, Economic Development and Construction Act 2009 (the “2009 Act”) will, however, once implemented, substantially amend the position by introducing a new statutory payment procedure governed by the service of “payment notices”, “payee default notices” and “pay less notices”. It is envisaged that these provisions will come into force on 1 October 2011.

Since 1976, it has been compulsory for solicitors in private practice to have professional indemnity insurance (“PII”). The current market-based system has been in place since 2000 and has provided a high degree of protection for firms and their clients at a comparatively low cost overall.

The latest RK Update examines HM Treasury’s announcement that it intends to bring the onward sale of residential mortgage portfolios within the scope of regulation by the Financial Services Authority.

This Case Law Update looks at the recent Court of Appeal decision in the professional negligence case of Haugesunde Kommune and another v Depfa ACS Bank.

This Case Law Update looks at the recent Employment Appeal Tribunal decision regarding employment law for secondees working in England and Wales.

Rosling King recently acted on behalf of Norwich and Peterborough Building Society (“the Society”) in connection with its successful opposition to an appeal by a personal guarantor (“the Guarantor”) against a Bankruptcy Order made in response to the Society’s Bankruptcy Petition.

This Case Law Update looks at the decision in Southern Pacific Securities 05-2 plc (in substitution for Southern Pacific Personal Loans Limited) –v- Walker and another in which the Supreme Court considered, for the first time, the key concept of credit.

This Case Law Update examines the Court of Appeal’s decision in Helmsley Acceptances Ltd v Lambert Smith Hampton which provides comfort to lenders, servicers and issuers seeking redress from professionals who were negligent in the loan origination process.

In the recent case of Muschett v HM Prison Service, the Court of Appeal was asked to decide whether a temporary agency worker was an employee as defined by discrimination legislation and, therefore, entitled to bring a claim for race, sex and religious discrimination.

This Case Law Update looks at the recent case of Good Harvest Partnership LLP v Centaur Services Limited where the High Court considered whether, upon an assignment of a lease, the guarantor of an original tenant can be made to enter into an Authorised Guarantee Agreement along with the original tenant.

The case of Goldsmith Williams v Travelers Insurance Company Ltd is important in the field of solicitor professional negligence. It addresses when an insurer can deprive a solicitor firm of insurance cover for a claim by exercising a dishonesty exclusion.

A look at the case of Goldacre (Offices) Limited v Nortel Networks UK Limited (in administration) which is important for landlords seeking to recover rent from companies which have gone into administration.

The latest Hindsight newsletter contains articles on a wide range of legal issues including pursuing defendants resident outside England and Wales, developments in consumer credit law, the use of schemes of arrangement and the conditions that can be imposed on tenants in break clauses.

On 25 November 2009 the Supreme Court delivered its Judgment in The Office of Fair Trading (Respondents) –v- Abbey National plc & Others (Appellants), a decisions which is likely to have an impact upon nearly a million claims brought by aggrieved banking customers.

In the case of Quest Advisors Limited and another v McFeely and another the High Court considered whether the seller of a development site had validly assigned its obligations and liabilities under a contract for the sale and leaseback of the development site and, if so, whether this amounted to a repudiatory breach of that contract.

This Case Law Update looks at the Court of Appeal decision in Southern Pacific Mortgage Limited -v- Jayne Elizabeth Heath which considered the issue of Multiple Agreements under the Consumer Credit Act 1974.

Rosling King LLP recently acted for Southern Pacific Personal Loans Ltd in this test case before the Court of Appeal arising from the interpretation of the Consumer Credit Act 1974.

This Case Law Update examines the case of Oakland v Wellswood (Yorkshire) Limited in which the Court of Appeal softens the effect of Regulation 8(7) of the TUPE Regulations 2006.

This Case Law Update examines the case of Phillip McGuffick –v- The Royal Bank of Scotland Plc which looks at the enforceability of loan agreements regulated by the Consumer Credit Act 1974.

Payment protection insurance (“PPI”) is the second biggest selling insurance product in the UK. This Case Law Update looks at the recent case of MBNA v Thorius which considered the actions of MBNA in selling PPI.

This edition of Caught in the Act looks at the provisions of the Companies Act 2006 which are due to come into effect on 1 October 2009.

A look at the the Pre-Action Protocol for Mortgage Possession Claims in Northern Ireland due to take effect from 5 October 2009