Mortgage: Applications

Question 1

Statute governing need to give notice?

Answer 1

Mortgage Repossession (Protection of Tenants) Act 2010 — section 2

Question 2

What must the mortgagee do before requesting enforcement of PO / SPO ?

How is this confirmed?

Answer 2

Give 14 days notice of their intention to enforce the order at the property and the notice is in the prescribed form

Lender must confirm by statement of truth on their application for a warrant that this step has been taken

Question 3

What statute provision govern’s court discretion ?

What can court do?

What cases still apply?

Answer 3

S.36 AJA 1970 & s.8 AJA 1973

Suspend / adjourn / postpone the warrant if borrower can show they are likely to be able to make CMI + amount towards arrears

Norgan + case law re. Selling property/neg equity/expired term mortgage

Question 4

Jammer v Paramus AMC

Answer 4

borrower asking court to exercise its discretion …must present frankly and fully, up-to-date information in respect of his expenditure and income such that the court could place reliance on that information

Without this should argue that Court should dismiss application and should NOT adjourn for such evidence to be provided

Question 5

What should be submissions if s.36 discretion is not invoked (due to insufficient evidence) but court attempts to order a stay of execution?

Order would be to dismiss application save the there be no execution until a specified date (if sale expected or Mortgagor’s new accommodation may not be ready yet)

Answer 5

State Bank of New South Wales v A Carey Harrison III — which approved the judgment of Philips LJ in Cheltenham and Gloucester v Krausz

Court has no inherent jurisdiction or under CPR to delay enforcement where the discretion under s.36 AJA is not engaged

Question 6

What should submissions focus on in a mortgage application hearing?

Answer 6

What has changed since the original Possession hearing

Question 7

How can a order suspending the warrant be mitigated?

Answer 7

• Higher amount towards the arrears
• Lump sum towards the arrears
• Review hearing in 3/6 months

Question 8

How to mitigate adjournment or warrant being suspended for a fixed period?

Answer 8

Submit likely take several weeks for a further eviction date to be set — due to be suspended for 28 days can argue to be suspended to the first available date because that is likely to be at least 28 days anyway

Question 9

What should be added to order if review hearing is to be listed?

Answer 9

‘Lender is at liberty to apply for a further eviction date if the Borrower breaches para 1’ (the suspension of the warrant of X terms)

Because in some courts bailiff will not set a further eviction date until the review hearing has been listed and heard so lender would be prejudiced if Borrower fails to make payments

Question 10

What submissions should be made re. Money judgment?

Answer 10

Non, no requirement to make any reference to the money claim at this stage

Question 11

IF borrower has persistently breached court orders and persistently makes applications to suspend warrants — what may it be appropriate to discuss with solicitors?

Answer 11

If application for a civil restraint order should be made requested in the terms of “no further applicatiosn be made without permission of the court”

Question 12

If court is not minded to make a civil restraint order what else can be requested?

Why?

Answer 12

If application is successfully dismissed — seek that the application is marked as being “totally without merit”

Could aid obtaining a civil restraint order at a future hearing

Question 13

In order for a tenant to rely on MR(POT) A 2010 at warrant stage, what type of tenant must they be?

Answer 13

Unauthorised— only applies to unauthorised

Question 14

Pursuant to s.1(4) MR(POT)A 2010 court can …

Answer 14

Stay or suspend execution of a PO for a period not exceeding 2 months

Question 15

What conditions must be satisfied for court to exercise power under s.1(4) MR(POT)A 2010

Answer 15

• on application by the tenant
• power under s1(2) were not exercised when making the PO
• the tenant has asked the Mortgagee, “to give an undertaking in writing not to enforce the
  order for two months beginning with the date the undertaking is given”; and
• the Mortgagee has not given such an undertaking.

Question 16

IF all the conditions are not satisfied then the judge

If a written undertaking has not been requested then the Court …

Answer 16

Should not exercise their discretion

Cannot grant relief to the tenant

Question 17

If judge does decide to suspend under s.1(4) MR(POT)A 2010 what should be requested

Answer 17

That it be specified on the face of the order that the suspension is pursuant to MR(POT)A 2010

Question 18

When considering if to exercise power under s.1(4) MR(POT)A 2010 judge should have regard to …

Answer 18

The circumstances of the tenant

Any breach of terms, nature of breach, if tenant could have avoided breach or remedied it

Question 19

What can court order under s.1(6) MR(POT)A 2010

Answer 19

Court may make postponing execution of PO :

conditional on the making of payments to the Mortgagee in respect of the occupation of the property (or part of the property) during the period of the postponement, stay or execution”

Question 20

What are submissions if judge minded that the application itself constitutes a request for an undertaking

Answer 20

Strongly oppose:

• Request must be in writing and unlikely tenant will have specified this in the application
• Mortgagee would not have chance to accept/refuse if this was the case
• Requirement for request is reducing if application and request are one and the same

Question 21

What CPR test applies if the borrower did not attend the hearing when PO was made and now makes an application to set aside that order

Answer 21

CPR 39.3

Often forms part of an application to suspend warrant of possession

Question 22

When is leave to enforce a PO required?

Answer 22

CPR 83.2(3)

If six years or more have elapsed since the date of the order

Or there has been a change (death or otherwise) in the parties entitle to enforce the order or liable to have the order enforced against them

Question 23

What information need to be provided when applying to enforce PO

Answer 23

CPR 83.2(4)

• identify order
• give reason for delay
• provide information required to satisfy the court that the applicant is entitled to proceed to execution on the order