Put yourself in the position of a bank that has taken a mortgage over a jointly owned matrimonial home as security for the business indebtedness of the now insolvent H. Unfortunately for you, W is in a position to claim that she is not bound by the mortgage because you knew, or should have been aware, that her signature was obtained by undue influence on the part of H.
With a view to realising the value of H’s half-share, could it pay to pursue the money claim against H and eventually make him bankrupt?
The answer in many cases is yes, because a court entertaining an application for sale by a trustee in bankruptcy (as distinct from a mortgagee of H’s beneficial interest) has to give paramount consideration to the interests of the creditors: see
And just in case W should claim that you are trying, as it were, to get possession by the back door, you can now point to Alliance & Leicester plc v Slayford [2000] EGCS 113, where it was held that suing on the personal covenant to repay did not amount to an abuse of process.
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Put yourself in the position of a bank that has taken a mortgage over a jointly owned matrimonial home as security for the business indebtedness of the now insolvent H. Unfortunately for you, W is in a position to claim that she is not bound by the mortgage because you knew, or should have been aware, that her signature was obtained by undue influence on the part of H.
With a view to realising the value of H’s half-share, could it pay to pursue the money claim against H and eventually make him bankrupt?
The answer in many cases is yes, because a court entertaining an application for sale by a trustee in bankruptcy (as distinct from a mortgagee of H’s beneficial interest) has to give paramount consideration to the interests of the creditors: see PP 2000/12 and PP 2000/15.
And just in case W should claim that you are trying, as it were, to get possession by the back door, you can now point to Alliance & Leicester plc v Slayford [2000] EGCS 113, where it was held that suing on the personal covenant to repay did not amount to an abuse of process.
