Response to more 6 yr/12 yr case law

Hi again

I have been thinking about the point you raised again.

The CA decision in Bartlett appears to apply to any action to recover any capital secured by a mortgage which existed when the right to recover the money accrued (para 31).

However, the CA also held that the cause of action arose from the borrower's default under the terms of the deed (para 28). From this it could perhaps be implied that where default is not under the deed but under a simple contract, the position may be different.

However, CA also said that the mortgage deed and any underlying contract merged, at least to the extent of the indebtedness which existed at the date of the loan (para 22).

I still feel that s.20 probably does apply to secured loans where the terms regarding repayment are in a contract rather than in the mortgage deed, but it is not totally clear that this is the case.

Guy

PS I have a copy of the uncorrected judgment but only in hard copy and not emailable.

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