He also rejected the defense's argument that the "Affidavit of Compliance with Mortgage Notice of Default Requirements" it had recorded after conveying the property to itself constituted prima facie evidence that the bank had validly exercised it power of sale.
Bank, said he also found it noteworthy that, nearly a decade after that seminal decision, foreclosing banks are continuing to violate the terms of the power of sale and the rights of the other interest holders.
The BRA opposed the motion to dismiss, arguing that Boston Private Bank breached its power of sale and violated its common law duty to protect the covenant in the course of the foreclosure proceedings.
Mr Abuga also said that the Central Bank of Kenya did not consult their lawyers over the method of disposal, but proceeded to use its statutory power of sale
TSB wished to exercise its power of sale
under a mortgage.
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