But I Wrote a Cheque

It is not often that the facts about how much of a mortgage was repaid are a matter of dispute, but in a recent case that was what happened and the decision led to a judge being criticised for her unorthodox approach to the evaluation of evidence.

A couple owned a house which they had bought with the aid of a mortgage of £200,000. They subsequently remortgaged the property. When the husband died, the mortgage became repayable and the lender sought repayment of the whole sum. When that was not forthcoming, the lender began proceedings for possession.

By the time the proceedings came to court, a total of more than £355,000 was sought by the mortgage company. However, the judge in the lower court awarded the lender only £200,000. She reviewed a number of cheque stubs for payments made to the lender (and some blank), some of which appeared in the accounts of the lender as loan repayments and some of which did not.

The judge took the view that three of the cheque stubs were for loan repayments and that the lender's record of account was in error in not including them, so the lender's calculation of the balance due in excess of the original £200,000 could not be relied upon.

Accordingly, the woman and her son were given time to pay off the loan of £200,000, which was within their means. The lender appealed against the decision.

The High Court concluded that the evidence on which the judge had based her ruling simply did not support her finding that the three controversial cheque stubs related to payments received by the lender and gave judgment for the lender for the full sum sought.

As £355,000 was more than the woman and her son could afford, the lender was granted a possession order.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
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