Ocwen Limited v Quinn

A court considering whether to stay a possession order should focus on whether the borrower can pay the secured debt or arrange payment. The amount claimed may be material where it affects that feasibility, particularly if default terms produce sharply increased charges. A possible statutory challenge may justify further consideration even at a late stage, but it must be properly formulated and supported. Non-attendance does not necessarily warrant dismissal where abandonment is uncertain and the papers disclose a potentially arguable issue. The court may adjourn for advice or representation while ensuring prompt resolution and fairness to the other side.

Two associated mortgage companies obtained possession orders against Alexandra Quinn. Her application to vary the orders was struck out by District Judge Bailey on 22 February 2001. Her appeal was dismissed by His Honour Judge Spittle on 8 June 2001, with leave for the claimant to issue a warrant of exclusion by 8 August 2001.

Quinn then sought permission to appeal to the Court of Appeal. After Ward LJ stayed execution and adjourned the matter, the application came before Lord Justice Mance. Quinn was absent and sought a further adjournment. The central issues were whether the application should be dismissed and whether the claimed loan balances disclosed a potentially arguable issue, including under the Consumer Credit Act 1974.

The application for permission to appeal was adjourned for further hearing before Ward LJ. There was no order as to costs. The court did not determine whether Quinn could vary the possession orders or whether any consumer-credit challenge would succeed.

1. The amount outstanding could be relevant to an application to stay a possession order. The essential question in deciding whether, and on what terms, to grant a stay was the feasibility of paying off the loans or arranging for their payment. The sharply increased monthly payments following default under the first loan therefore warranted consideration.
2. The papers did not establish that the mortgagees were in liquidation. The dissolution of J & J Securities Limited was immaterial if it had assigned the mortgage to Ocwen Limited before dissolution. The dissolution of City Mortgage Services Limited was likewise immaterial because it was only a servicing company and not a mortgagee.
3. If Quinn had defended the proceedings by cross-applying under sections 138 to 139 of the Consumer Credit Act 1974, the differential charging under the first loan might have given her some prospects. It was conceivable that steps could still be taken, although the lateness of the application created obvious difficulties.
4. Dismissal was inappropriate at that stage. Quinn’s absence might not signify abandonment, and she might not have received notice that her earlier adjournment request had been refused. The potential issue required proper consideration with legal advice and, if possible, pro bono representation. The matter was to be brought to a conclusion shortly, having regard to fairness both to the applicant and to the respondents.

1. Court of Appeal (Civil Division): The application for permission to appeal was adjourned for further hearing before Ward LJ. Execution of the possession orders remained stayed pending the resumed hearing. No order for costs. [2002] EWCA Civ 110
2. Middlesborough County Court: District Judge Bailey struck out Quinn’s application to vary the possession orders on 22 February 2001. His Honour Judge Spittle dismissed her appeal on 8 June 2001 and permitted the claimant to issue a warrant of exclusion by 8 August 2001.