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Mortgage Rights (Scotland) Act 2001

Outline of the  Act

Section 1 Application to suspend enforcement of standard security

8.Where a creditor has issued a calling-up notice or a notice of default, made an application under section 24 of the 1970 Act or commenced proceedings under section 5 of the 1894 Act, this section allows the debtor or the proprietor (where the proprietor is not the debtor) to apply to the court for an order under section 2suspending the creditor’s rights of enforcement. A debtor or proprietor can apply only where the property subject to the security is that person’s sole or main residence.

9.The section also allows the debtor’s or proprietor’s non-entitled spouse to apply to the court where the security subjects are the sole or main residence of the non-entitled spouse, whether or not it is the sole or main residence of the debtor or proprietor.

10.This section also allows an application to be made by a person living together with the debtor or proprietor as husband or wife or in a same sex relationship with the characteristics of husband and wife (who is referred to in these Notes as a “partner”). The partner of the debtor or proprietor may apply where the security subjects are the sole or main residence of both the debtor or proprietor and the partner (and, in such a case, no further tests require to be met before the partner can apply). Where the security subjects are no longer the sole or main residence of the debtor or proprietor, the (former) partner can only make an application if (a) the security subjects are still his or her sole or main residence, (b) he or she lived with the debtor or proprietor throughout the six month period up to the date when the security subjects ceased to be the sole or main residence of the debtor or proprietor, and (c) the security subjects are the sole or main residence of a child under sixteen years of age of the debtor/proprietor and partner (and child here includes a step-child and someone brought up by or treated by the debtor/ proprietor and (former) partner as their child).

11.Applications to the court must be made within the time limits specified in subsection (4). Subsections (5) and (8) make provision, in cases where a calling-up notice or notice of default have been served, for shortening the time limits with consent.

12.The effect of subsection (7) is that a creditor is not entitled to exercise rights to enforce a standard security at any time when an application under this Act is competent (or when an application has been made but not yet determined by the court).

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Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills


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