Outer House case in which Mrs Hoblyn sought reduction of a decree authorising the bank to take possession of a house occupied by her, suspension (and interim suspension) of a notice of ejection against her and interdict (and interim interdict) preventing the bank from selling the house. The Court initially granted orders temporarily suspending the eviction and preventing the sale of the house. However, the bank sought recall of those orders.

The house had formerly been the matrimonial home shared by Mrs Hoblyn, her former husband and their children but it was owned solely by Mr Holbyn. Mr Holbyn had not lived in the house since the couple separated in 1994 and he was later sequestrated. The bank, which held a standard security over the house, had taken action to repossess and sell the house after the related loan account fell into arrears.

Mrs Holbyn’s ground of challenge appeared to be that the correct statutory procedure had not been followed. She gave evidence of the actings of her former husband who she said (unbeknown to her) had acted in bad faith in his financial dealings and also challenged the good faith of his sequestration, arguing that he had arranged his own sequestration to avoid debts he had incurred.

Although Lord Drummond Young sympathised with Mrs Holbyn’s predicament and accepted that she was likely to suffer hardship, he found that she had failed to make anything approaching a prima face case. It had been clear that the bank had done everything required of it by way of service on Mrs Holbyn and procedure under the legislation. The problem was that the house was subject to a standard security in respect of a loan to Mr Holbyn and that loan payments had not been made. In those circumstances the bank was entitled to enforce the security, if necessary by repossessing the house and selling it. The fundamental objectives of the law of heritable security would be frustrated if that course were not available. Consequently, Lord Drummond Young recalled the interim suspension and interdict the court had previously granted.

The full judgement is available from Scottish Courts here.

Mrs Holbyn sought and was refused an interim interdict preventing the eviction and an appeal against that decision was also refused in the Inner House ([2014] CSIH 52).

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.