By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A BAHAMIAN attorney’s former Village Road law offices have enjoyed a last-minute rescue after the Supreme Court dismissed a mortgage restructurer’s bid to foreclose and repossess the property as “frivolous and vexatious”.

Acting justice Raynard Rigby KC yesterday upheld the strike-out by R&R Holdings, a company owned by attorney Derek Ryan, after he found that both the action sparked by the original mortgage default and enforcement of a subsequent judgment by Gateway Ascendancy, which is headed by Sir Franklyn Wilson, were out of time and statute-barred by the Limitation Act.

As a result, acting justice Rigby overturned two previous foreclosure Orders that would have allowed Gateway Ascendancy to repossess the building that once housed Mr Ryan’s law firm, Ryan & Company. The Supreme Court verdict now means that not only is Mr Ryan in a position to get his property back, but also benefit from the “substantial, material and irrerversible” upgrades made by Gateway Ascendancy at its expense amid an ongoing legal battle.

Damian Gomez KC, former minister of legal affairs who represented Mr Ryan and his company, said the verdict showed that “if the Limitation Act period expires for both the cause of action and the judgment you cannot now come back and say the judgment is res judicata”. He added that, despite the existence of ongoing leval proceedings, Gateway Ascendancy has installed “a big parking lot” and ramps to give disabled persons access.

Sir Franklyn, in reply, told Tribune Business: “The lawyers will deal with it. It is what it is. It’s a court process. Whatever happens we’ll deal with it. It’s life. That’s the process.”

Described as having “a colourful history” for over a decade by Mr Rigby in his 53-page verdict, the legal dispute also embroiled Mr Ryan’s fellow attorney, Ian Jupp. He had leased the Village Road property on December 28, 2020, and argued that Gateway Ascendancy must have known of his presence as its own attorney, Sharlyn Smith, had corresponded multiple times with him at the same address in 2021 over a separate real estate transaction where they were representing both parties.

However, upon returning from a two-week vacation on July 30, 2023, Mr Jupp found he had been locked out by Gateway Ascendancy and was unable to access his office and client files. Then, two years later, he was driving past the Village Road offices when he saw client files and other possessions had been “discarded into multiple garbage bins” and left outside where they “were either damaged or destroyed” by heavy rain.

“I had been a tenant of [R&R Holdings] continuously operating my law practice therein from that date, up until the date when I was unceremoniously and without notice locked out of the said demised premises by the claimant/applicant [Gateway Ascendancy],” Mr Jupp alleged.

“The said demised premises had always served as my principal place of practice… and the secure repository of my client files, books, professional implements, professional apparel, office equipment, and personal effects. On Sunday, July 30, 2023, I had just returned from a two-week vacation and, on that same evening, I went to the said demised premises to prepare for my return to work the following day (Monday).

“Upon my arrival, I noticed that some legal documentation had been taped to the outer gate at the entrance thereto. I then tried to unlock the gate, but I found that my key to the lock was not working. I then realised that the lock had been changed. I then read the entirety of the documentation taped to the gate, and I further realised that I had been locked out of the said demised premises by the claimant/applicant, who had obtained an order for an Injunction to do so among other things.”

The travails which ultimately impacted Mr Jupp stem from a Scotiabank (Bahamas) mortgage that Mr Ryan and his company obtained in 2000, more than a quarter of a century ago. The loan was eventually sold, or transferred, to Gateway Ascendancy as part of the portfolio of delinquent and defaulted mortgages sold by the Canadian-owned commercial bank.

However, prior to the sale and transfer, Scotiabank obtained a Supreme Court possession Order against the Village Road property on January 25, 2016. And Gateway Ascendancy did not seek to enforce this until January 2023 - some seven years later. As a result, Mr Gomez argued that the foreclosure bid was statute-barred by the Limitation Act as this requires enforcement actions to be brought within six years - a deadline that expired in April 2022.

As a result, he argued on Mr Ryan’s behalf that the claim was statute-barred and the two foreclosure orders obtained by the mortgage restructurer in July 2024 and April 2025 should be set aside and struck out. As for the basis of the claim - the mortgage default - Mr Gomez argued that, because Scotiabank admitted this occurred on May 26, 2009, this too is statute-barred by the Limitation Act which only allows a maximum 12 years - until 2021 - for a lender to recover a mortgage debt.

Acting justice Rigby, in his verdict, wrote: “Based on the authorities noted above, it seems clear that the court has a discretion to re-open a foreclosure order absolute. The discretion is one that must be exercised sparingly and judiciously.

“I note and highlight that no contention is made by the defendant (Mr Ryan and his company) that it can pay the mortgage debt or that the court should instead order a sale of the property given its significant value. The nature of the defendant's complaint is that the foreclosure orders should not have been made because the recovery of the debt is statute barred by section five of the Limitation Act.

“The principal question for the court, therefore, is whether the limitation argument is a good reason for the re-opening of the foreclosure order, or a circumstance to warrant the exercise of the court's discretion to re-open the foreclosure order absolute.” Mr Rigby found there was just such an argument.

“I exercise my discretion to re-open the foreclosure orders primarily because should the limitation argument prevail, the claimant ought not to have the benefit of the mortgaged property or, alternatively, the defendant ought not be deprived of its right to the property. Equity must be seen to do equity; starving of any unjust advantage or benefit to the party who came to the court seeking equity,” he ruled.

And, finding in favour of Mr Gomez’s arguments, acting justice Rigby agreed with the statute-barred deadlines he had calculated. “The limitation defence advanced by the defendant appearsto be unimpeachable,” the latter wrote. “Under the Limitation Act, a foreclosure action in respect of mortgaged land is treated as an action for the recovery of land.

“No such action may be commenced after the expiration of 12 years from the date on which the right of action accrued. If the mortgage contains a fixed date for redemption, the right of action accrues at that date. It is generally accepted in law that the action accrues at the time of default or non-payment…

“I am bound to conclude that the foreclosure proceedings which were commenced in 2023 by [Gateway Ascendancy] were in fact commenced outside of the prescribed limitation period. It must follow therefore that the claim to seek a foreclosure order was statute barred. The court thereby lacked the jurisdiction to grant the Foreclosure Orders (Nisi and Absolute).”

As for enforcement of the January 25, 2016, possession order originally obtained by Scotiabank, acting justice Rigby added: “The fact that the defendant remained in occupation after its default in May 2009, and continued to occupy the mortgaged property until July 2023, led me to my findings on the evidence that the periods to enforce the judgment debt and to seek foreclosure of the mortgaged property expired by the time this action was filed….

“I also find that, and occasioned by the expiration of the limitation periods to enforce the judgment debt and to seek foreclosure, the claimant's [Gateway Ascendancy] claim is frivolous and vexatious, and thereby I grant the strike out application.”