Vassell (Marcella) v Victoria Mutual Building Society

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: HARRISON J
• Judgment Date: 14 April 2000
• Judgment citation (vLex): [2000] 4 JJC 1405
• Docket Number: SUIT NO.V01 OF 2000
• Date: 14 April 2000

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO.V01 OF 2000

BETWEEN

MARCELLA VASSELL

PLAINTIFF

AND

VICTORIA MUTUAL BUILDING SOCIETY

DEFENDANT

INJUNCTIONS - Interlocutory - Mortgage payment in arrears - Order to restrain defendant from exercising remedy of power of sale

HARRISON J

1 I must apologise for the delay in delivering this judgment but it has been due mainly to my assignments in the Criminal Courts since I completed the matter on the 21 ^st day of February 2000.

2 Background

3 The affidavit evidence reveals that on the 8 ^th day of March 1996, the plaintiff received a mortgage from the defendant in respect of property situate at 24 Linstone Crescent, Kingston 10. She has fallen into arrears with the mortgage payments so, the defendant, who are mortgagees have exercised their powers of sale under the mortgage contract.

4 Patricia Fisher, Assistant Manager in charge of Arrears Control at the defendant Building Society has deposed in an affidavit sworn to on the 12 ^th day of January, 2000 that a sale of the premises to a third party is in process and has reached the stage where an Agreement for Sale was signed on the 18 ^th day of November, 1999. A Transfer has not yet been effected as an Interim Injunction was granted on the 6 ^th January 2000 restraining the defendant from taking any further steps in furtherance or completion of the sale or transfer of the property.

5 A Writ of Summons was filed in this Honourable Court on the 4 ^th day of January 2000 and the plaintiff is claiming inter alia, that the purported exercise by the defendant of its power of sale under the said mortgage was premature and improper and further that the said sale by private treaty is void.

6 Application for interlocutory injunction

7 The plaintiff now seeks an order for an interlocutory injunction against the defendant that:

• 1. The defendant be restrained from taking any further steps in furtherance or completion of the sale or transfer of premises registered at Volume 1270 Folio 419 by private treaty.

• 2. The defendant by its servants or agents or otherwise be restrained by injunction from continuing to exercise its remedy of power of sale of the premises known as 24 Linstone Crescent, Kingston 10, St. Andrew and registered at Volume 1270 Folio 419 by endorsing any new name on the Certificate of Title as proprietors until the trial herein.

8 Affidavit evidence and submissions

9 The plaintiff has admitted that she is in default with her mortgage payments. She was constantly in arrears and the defendant sent her Notices under the Registration of Titles Act in relation to the exercise of the powers of sale. She has deposed however, in her affidavit sworn to on the 6 ^th January 2000:

• "2. That the last demand for any payment made on me by the Defendant/Mortgagor was for payment of a part of the mortgage debt to wit $83,585 to be paid no later than the 31 ^st day of October 1999 to which I found myself in default and I exhibit herewith the said schedule demanding payment..

• 3 That since the ultimatum of the 31 ^st October, 1999 for payment in the aforementioned schedule was served on me, I have received no further communication nor notice from the defendant/mortgagee with respect to its intention to sell my property either by Auction or Private Treaty.."

10 At paragraph 10 of her affidavit sworn to on the 18 ^th January, 2000 she states:

"10 (b) ...I was happy to have received from the defendant the Notice of their revised monthly repayment requesting that I pay $83,585.00 no later than the 31 ^st October, 1999 by which the defendant lulled me into believing that they understood my predicament and would not further attempt to dispose of my property secretly without further reference to me."

11 The Notice which the plaintiff refers to in paragraph 10 (supra) states inter alia:

"01 10 1999

SCHEDULE

MONTHLY REPAYMENT CHANGES ON A/C.....

Securities

• 1. SUM INSURED

  Effective 01-Oct-1999.................................$8,919.00

• 2. MONTHLY REPAYMENT EFFECTIVE OCTOBER 1999.

  ......

• 3. OTHER PARTICULARS

  PRINCIPAL & INTEREST.................$74,941.23

  ESCROW(INCLUDING INTEREST) 8,643.77

  REVISED MONTHLY REPAYMENT $83,585.00

(TO BE PAID NO LATER THAN)...31- OCT - 1999"

12 Patricia Fisher swore to an affidavit on the 12 ^th January 2000 and at paragraph 28 she states:

• "28. ...The plaintiff knew or ought to have known that the Schedule sent to her relates specifically to the Insurance on the property and not to the mortgage loan based on the schedule itself and the fact that the plaintiff had received several notices, all of which set out the amount outstanding on the loan as at the date of Notice. That this Schedule could therefore not be considered by the plaintiff as an "ultimatum" nor did the Schedule mark the date at which the defendant could exercise its power of sale."

13 The plaintiff responded to the above paragraph and also to paragraph 29 and states:

• "(a) That the Demand Notice contained in the schedule dated 1 ^st October, 1999 is in fact an ultimatum to me for part payment of the mortgage debt no later than one (1) month after, to wit: the 31 ^st October, 1999 which said Notice has legal implications pursuant to sections 105 and 106 of the Registration of Titles Act which protects my rights as a borrower/mortgagor to a further statutory notice for the full amount whereupon default has to continue for a further month after expiration of the said statutory notice...."

14 Having regards to the foregoing circumstances, Mr. Foote submitted that the Demand/Notice dated 1 ^st October, 1999 served on the Plaintiff by the defendant for payment no later than 31 ^st October, 1999 to which the Plaintiff was in default, is of legal significance in that it estops or suspends the defendant's exercise of its power of sale:

• (i) Until after the expiration date named therein, the 31 ^st October, 1999 and

• (ii) Until after continuance of such default for a further one (1) month after its expiration(to wit 30 ^th November, 1999) pursuant to s. 106 of the Registration of Titles Act or

• (iii) Until at least upon reasonable notice of intention to exercise the Power of Sale after the date for payment of no later than the 31 ^st October, 1999 has passed on the principle of equitable estoppel.

15 The plaintiff also contends that the property was grossly undervalued. She deposes at paragraph 8:

"....the sale price of $5.8 million is in breach of the defendant/mortgagee's duty of care to me the mortgagor to sell the property at the most reasonable price obtainable since such a price is grossly undervalued so...