The GAR Bank Limited (GAR) is a company incorporated under the laws of the Commonwealth of The Bahamas carrying on the business of banking in The Bahamas. Michael Fraser is a citizen of the Commonwealth of The Bahamas and a customer of GAR. the “Mortgagor” entered into an Indenture of Mortgage (“The Mortgage”) dated 24th January 2011 with the GAR (“Mortgagee”). On the 9th March 2011, Mr. Fraser executed a loan agreement with the GAR in the sum of $176,250.00 which was secured by The Mortgage. The property so mortgaged is described as follow: All that piece parcel or lot of land being Lot Number Twenty-Six (26) on a plan of lots of the Subdivision laid out by “The New Providence Land Company Limited” in the Eastern District of the Island of New Providence one of the Islands of the Commonwealth of The Bahamas. Before proceedings commenced, the parties agreed to restructure the Mortgage Loan twice: 23rd April 2014; and 23rd December 2016. The parties on 22nd December 2016 restructured the mortgage loan (“The Mortgage Loan”), for the last time, in the sum of $206,496.00 plus interest. The Mortgaged Loan was restructured in 23rd December 2016 which was perfected by promissory note; Mr. Gibson was in default of his mortgage obligations on 5th August 2019; Mr. Gibson made payments in the sum of $10,000 and $37,373.94; Mr. Gibson made, as of 27th October 2021, a $180,353.66 contribution towards the total principal sum and interest of The Mortgage Loan, Mr. Gibson’s monthly payment obligation, under the terms of the Mortgage Loan when it was refinanced for a final time was $2,033.35 plus accruing interest; and Mr. Gibson was habitually missing those monthly payments. The Bank also presented an expert in accounting; The Mortgage Loan was restructured and not consolidated; The Defendant defaulted on his loan obligation on 5th August 2019; and The Amortization Schedule only sets out how the Mortgage Loan would have aged in its lifetime if the Defendant serviced it properly and conveys nothing else. In summary, GAR first submits that Mr. Fraser has defaulted on his payment obligations to the GAR under The Mortgage Loan and thereby owes the GAR as of 19th October 2021 a principal sum of $182,175.92 inclusive of other charges. Secondly, GAR posits that the common law entitles it to vacant possession of the mortgaged property and that Mr. Fraser’s default of the terms of The Mortgage Loan further confirms this position. Mr. Fraser submits that he is not in default of his obligations under The Mortgage Loan as claimed by GAR and avers that he was overcharged in the amount of $62,422.96 and seeks in substance a third restructuring of his loan with GAR. (i) Explain why the Bank will include an “all monies” clause in the mortgage deed. (5 pts) (ii) Explain the mortgagor’s obligation to insure the property and keep it in good repair. (5 pts) (iii) The Mortgage deed included a clause which stated that “the borrower hereby attorns and becomes tenant at will to the Bank of the said hereditaments at a peppercorn rent during the continuance of this security but nothing in this clause contained shall prevent the Bank from at any time entering on and taking possession of the said hereditaments and so determining the tenancy created.” The Bank in turn relies on the remarks by Harman J in Fourmaids Ltd [1957] which substantiates the mortgagee’s legal right to take possession of the mortgaged property: “The law is clear: in the absence of any contractual or statutory constraints, the mortgagee (the lender) is entitled to possession of the mortgaged property ‘before the ink is dry on the mortgage”. Discuss whether Mr. Fraser will be successful against the Bank
