Try having a look at the Property Law web site, maintained by Gary Webber, barrister. If you go to http://www.propertylawuk.net/frameresidential.htm you will find a section called 'recovery of mortgage shortfall' which specifically discusses the 6 and 12 year limitation periods. He discusses the two main cases which are often referred to in this context, Hopkinson v Tupper (1997, Court of Appeal), and Global v Jones (1999, Chancery Division of the High Court).(posted 8190 days ago)If I might attempt to summarise what Mr Webber says:
Hopkinson v Tupper.
The Court of Appeal decided that is seriously arguable that where a lender has repossessed and sold the security (the property) and is seeking to recover the shortfall, the claim is in simple contract whatever the nature of the instrument under which the debt was initially secured. It is arguable that the limitation period applicable is 6 years. The county court judge should have found that the defendant had a seriously arguable case that much or all of the claim was statute barred. In fact the county court judge had struck out the case on the basis of inordinate delay, which was upheld by the Court of Appeal [take note, all those who are worried about claims being held over them for a lifetime!].
[What this has meant (unfortunately)is that the 6/12 year issue remains unresolved as a point of law in the Court of Appeal. But there are signs that lenders do not want to go there and argue the toss, which is interesting......]
Global Financial Recoveries v Jones.
The judge noted that the mortgage deed contained a special clause which allowed the original lender to pursue the shortfall for 12 years. The judge held that as this clause was actually part of the mortgage deed any claim based upon it was an action 'upon a specialty' so that the 12 year limitation period applied.
[Here comes the really interesting bit.] In fact the claimant was an assignee of the debt. Upon the facts of the case the judge found that only the benefit of the underlying loan contract had been assigned and not the benefit of the condition of the mortgage. The claim was therefore based upon a simple contract and the 6 year rule applied.
[This is potentially significant IMHO because quite a lot of people who read this page are being pursued *not* by the original lender but by a compnay who have had the 'debt' assigned to them.]