CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 26665/95                       by Diana and Alistair KELMAN                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 2 November 1994 by Diana and Alistair Kelman against the United Kingdom and registered on 8 March 1995 under file No. 26665/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the applicants, may be summarised as follows.         The applicants, United Kingdom nationals, are spouses residing in London.   The first applicant was born in 1950 and is a computer consultant.   The second applicant was born in 1952.   He is a barrister and also represents his wife before the Commission.         The applicants had a joint account and several other business and personal accounts with TSB Bank plc ("TSB").   Between 1985 and 1989 they obtained several loans from TSB, drawn for business purposes and for improvements in their house.   These included a £ 35,000 loan secured by a mortgage on their house, a £ 135,000 loan for the purchase of real property and the cost of its conversion, secured by a mortgage on their first house and on the newly purchased house, and further loans totalling £ 73,000 for upgrading the quality of the reconstruction works and covering outstanding legacies from the second applicant's inherited estate.         In 1990, due to unfavourable market tendencies, the applicants began to experience financial difficulties.   In February the second applicant had to borrow an additional £ 20,000 on his credit cards and to sell his car in order to meet payments due on the reconstruction works undertaken in the newly purchased real property.         Throughout the relevant period the applicants regularly received from TSB bank statements concerning all their accounts and loans. In 1992 the applicants decided to review the management of the accounts and discovered discrepancies and errors.   They sought more information from TSB, but this was refused.         On 23 March 1992 TSB demanded the immediate repayment of £ 133,570.53.   The applicants questioned the accuracy of the bank statements and the exact amounts due and sought further information.         In November 1992 TSB instituted proceedings against the applicants seeking the possession of the mortgaged properties.   The applicants submitted a counterclaim for damages asserting that TSB had provided to them wrongful information and had refused to provide other information as regards certain bank statements.         On 23 May 1994 TSB obtained a judicial order for possession of the mortgaged properties.   The applicants submitted an appeal to the High Court.   They claimed that TSB should not be granted possession of the properties until the disputes regarding the inaccuracies in certain bank statements were determined in ordinary judicial proceedings. Alternatively, they relied on a statutory provision which allowed the Court to postpone delivery of the possession if the debtor convinced the Court that he would pay the debt within a reasonable time.         On 8 July 1994 the High Court delivered its judgment.   The Court found that as long as it had been undisputed that the applicants owed a significant amount of money, TSB was entitled to the possession of the property.   Also, a counterclaim could not be a defence against the mortgagee's action for possession.   The Court then adjourned the matter to enable the applicants to produce evidence that they would be able to repay the sums claimed within four months.         The applicants repaid the amounts claimed by TSB.   This was done apparently without prejudice to the dispute as regards the exact amount due.   The applicants have not indicated whether they ultimately pursued their claims for damages and inaccurate accounting.   COMPLAINTS         The applicants complain that the rule, whereby a mortgagee is entitled to immediate possession of the mortgaged property regardless of existing disputes as to the exact amount of the loan secured on it, is contrary to Article 8 of the Convention where, as in their case, the mortgaged property is the debtor's home.   Article 8 should be interpreted, in their view, as requiring adjudication by normal trial proceedings of any such disputes before a mortgagee is granted the possession of the debtor's home.         The applicants assert that in their case they had no choice but to repay the amount claimed by the bank as they risked losing their home.   They invoke Article 1 of Protocol No. 1 to the Convention.   THE LAW         The applicants complain, under Articles 8 and Article 1 of Protocol No. 1 (Art. 8, P1-1) to the Convention, that they risked losing their mortgaged home without prior determination, through ordinary civil proceedings, of the dispute concerning the exact amount due and that as a result they had to pay on the creditor's terms.         However, the Commission need not decide whether the facts complained of fall within the scope of Article 8 or Article 1 of Protocol No. 1 (Art. 8, P1-1) to the Convention and if so, whether the applicants have exhausted all domestic remedies within the meaning of Article 26 (Art. 26) of the Convention, as the application is in any event manifestly ill-founded for the following reasons.         The Commission recalls its case-law according to which it follows from Article 25 (Art. 25) of the Convention that an individual cannot complain against a law in abstracto (Appl. No.8307/78, Dec. 11.7.80, D.R. 21, p. 116).         The Commission notes that the applicant's home was never repossessed by their creditor.   Therefore, they cannot claim to be the victim of a breach of their rights in this respect.         Insofar as the applicants complain that they were forced to accept the repayment of the amount claimed by the bank, the Commission notes that the applicants can receive back any overpaid amounts by seising the courts with their claims concerning the alleged accounting errors and ensuing damages.         It follows that the application is manifestly ill-founded and has to be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                       (C.L. ROZAKIS)