Firstcaribbean International Bank (Bahamas) Ltd v Pedro Entown Fox

• Jurisdiction: Bahamas
• Judge: Winder, J
• Judgment Date: 05 March 2021
• Date: 05 March 2021
• Docket Number: 2011/CLE/GEN/01439
• Court: Supreme Court (Bahamas)

IN THE SUPREME COURT

Common Law & Equity Division

Before

Hon Mr Justice Ian R Winder

2011/CLE/GEN/01439

In the Matter of the property comprised in an Indenture of mortage dated the 24th day of October 2002 and made between Pedro Entown Fox and Donalee Eleanor Fox as Borrowers and FirstCaribbean International Bank (Bahamas) Limited as Lendor

And in the Matter of the Conveyance and Law of Property Act, Chapter 138 of the Revised Statute Laws of the Commonwealth of The Bahamas

Between

Firstcaribbean International Bank (Bahamas) Limited

Plaintiff

and

Pedro Entown Fox

Defendant

Appearances:

Raynard Rigby with Candice Ferguson for the Plaintiff

Romona Farquharson-Seymour with Quintin Percentie for the Defendant

Winder, J

This is a claim for relief in a mortgage action by the plaintiff seeking to exercise its power of sale under the Mortgage Deed dated 24th October 2002, by reason of the defendant's (Fox's) default of payment under the said Mortgage Deed.

1 Fox and his wife had acquired Lot 346 Garden Hills Estates No. 2. At the time of the acquisition, a mortgage was secured from the plaintiff to facilitate the purchase. Fox chose Roger Minnis from a list of approved attorneys to do the legal work in the purchase of the property. Following upon the couple's divorce, in May 2006, Fox acquired the entire interest in Lot 346, with the assistance of a new mortgage from the plaintiff.

2 Fox says that in 2007 he learnt that there was a land issue. He was advised by the neighboring land owner (Lot 345), Monique Roker (Roker) that he was trespassing on part of her land. Roker's complaint, formally expressed by her lawyers Graham Thompson, in March 2008, was that Fox's “washhouse was located on a portion of Monique Roker's Lot 345”. It appears that Fox's home was acquired from another bank in the exercise of their power of sale against Roker's father, Harvey Roker. As Harvey Roker owned both lots the home was not built squarely on Lot 346 and a very small portion straddled Lot 345.

3 It appears that initially Roker offered to sell Fox the entire Lot 345 but they couldn't agree on a price as Fox felt that the amounts sought was too high. Roker then offered to sell a portion of her Lot at $9,000 in March 2008. When the offer was not taken up, within a month or so, Roker excavated her property to within a foot of Fox's house. As Roker's property was elevated, she levelled or excavated it to the street level.

4 Fox wrote to the plaintiff, at that stage, complaining that his structure was compromised by the cutting into the property by Roker. In the letter, dated 9 May 2008, Fox advised that he felt that he was let down by the Bank and that someone, whether the lawyers, the vendor bank or the plaintiff ought to have realized that the building was “not on the right property”. Fox indicated that he was no longer interested in living or maintaining the property.

5 Fox has not paid anything on the mortgage since 5 June 2008.

6 This action was commenced by Originating Summons and was converted to a Writ Action. The plaintiff filed a Statement of Claim which provides, in part, as follows:

• 1. The Plaintiff is a financial institution and is licensed under the Bank and Trust Companies Regulation Act to carry on the business of banking at its Receivables Management Department on Independence Highway, New Providence, The Bahamas and elsewhere within the jurisdiction of the Commonwealth of The Bahamas.

• 2. At all materia! times the Defendant was and is a customer of the Plaintiff and is indebted to the Plaintiff pursuant to the Demand Loans more particularly described hereinafter.

• …

• 8. On or about the 12 ^th June, 2006 the Defendant entered into a loan facility with the Plaintiff and agreed to borrow the sum of $203,500.00 representing a residential mortgage and agreed to make blended monthly payments of $1,565.74. The Defendant agreed that the aforesaid property at Garden Hills will serve as collateral for the said loan as well as Lot No. 13, Turtle Rocks Subdivision near Leisure Lee, Abaco.

• 9. In breach of the terms of the Loan granted in June, 2006, the Defendant has failed to make the agreed payments and has fallen into arrears thereunder whereupon an outstanding balance is payable and owed to the Plaintiff. The Defendant's last payment under the loan was in December, 2010 in the sum of $4,000.00. However, the Defendant's account was in arrears in the amount of $61,376.92.

• 12. Due to the non-payment by the Defendant as aforesaid the Plaintiff has suffered loss and damages occasioned by the state of the said account and by its being in arrears.

  Particulars Pursuant to Order 73, Rule 2

  • (i) The Loan was originally made on or about the 24 ^th October, 2002 and was restructured on the 12 ^th June, 2006 and the terms were accepted by the Defendant on the 13 ^th June, 2007;

  • (ii) The amount actually agreed to be lent on the restructuring was $203,500.00 principal, plus interest at the rate of 7.75% per annum;

  • (iii) The interest rate charged is the rate aforesaid;

  • (iv) The restructuring contract for repayment was made on or about the 13 ^th June, 2007;

  • (v) Contract dated the 13 ^th June, 2007 was made and was signed by the Defendant and was delivered to the Defendant immediately after the execution thereof;

  • (vi) The amount of principal and interest repaid as of the 15 ^th August, 2011 is $39,331.38;

  • (vii) The amount of principal accrued due and unpaid is $217,521.91 as of the 15 ^th August, 2011;

  • (viii) The amount of interest accrued due and unpaid is $54,607.72 as of the 15 ^th August, 2011;

  • (ix) The amount of principal and interest outstanding as of the 15 ^th August, 2011 is $274,008.43;

  • (x) By reason of the foregoing the Defendant is indebted to the Plaintiff under the Loan as of the 15 ^th August, 2011 in the sum of $274,008.43.

• 13. The Plaintiff claims interest pursuant to Section 2 of Civil Procedure (Award of Interest) Act, 1992 on the amount found due and owing at such rate and for such period as the Honourable Court thinks just and equitable.

  AND the Plaintiff claims as against the Defendant:

  • 1. Delivery up of possession of ALL THAT piece parcel or lot of land lying within the Subdivision called and known as “Garden Hills Estates Number Two (2)” situate in the Southern District of the Island of New Providence being Lot Number Three Hundred and Forty-six (346) in the said Subdivision which said piece of land has such positions shape boundaries and marks and dimensions as are shown on the diagram or plan attached to the recorded plans of the said Subdivision and is thereon coloured Pink (sic)

  • 2. Delivery up of possession of ALL THAT piece parcel or lot of land situate off...