A mortgage suit is a type of proceeding, taken by the holder of a security on property (usually a judgment mortgage or equitable mortgage) to recover a debt by forcing a sale of that property.
A well charging order
The details of a well charging order vary from case to case, but most contain 3 elements.
- A declaration that the debt owing to the plaintiff, plus interest, plus the plaintiff's costs are 'Well Charged' on the defendant's interest in the property.
- A direction that the property be sold (usually the court gives the defendant time to pay the amount due to the plaintiff before the order for sale becomes effective.
- A direction that the Examiner take an account of all incumbrances and make an inquiry into their respective priorities. An incumbrance is a charge, mortgage, lien or other debt that is secured on a property.
When the High Court makes a well charging order and if the defendant does not pay the full amount due within the time allowed, the plaintiff must refer the matter to the Examiner's Office.
How proceedings are started in the Examiner's Office
The plaintiff starts proceedings by lodging certain documents, including a copy of the well charging order. He/she then issues a document called a Notice to Proceed and serves it on the defendant. A sitting then takes place before the Examiner on the date set out in the notice to proceed.
The formal business of the office is conducted in sittings before the Examiner as set out in Order 55 of the Rules of the Superior Courts.
The main steps in the proceedings in the Examiner's Office
The process has two elements.
1. Ascertaining the incumbrancers and their respective priorities.
» The plaintiff places an advertisement for incumbrancers at the Examiner's direction.
» The incumbrancers lodge claims pursuant to the advertisement.
» The Examiner adjudicates on the claims.
» The plaintiff issues a motion before the Examiner to settle the certificate of incumbrancers. This is done late in the proceedings, after completion of the sale of the property (see below).
2. Arranging the sale of the property.
» The plaintiff requests, at the Examiner's direction, a Court Conveyancing Counsel (a barrister appointed by the court for that purpose) to prepare conditions of sale.
» The plaintiff issues a motion, before the Examiner, to settle particulars and conditions of sale based on the draft conditions and opinion of counsel.
» The plaintiff nominates an auctioneer to conduct the sale. An independent valuer is also appointed.
The sale, unless otherwise ordered by the court, is by public auction. After the auction, the Examiner signs a certificate of result of sale - court duty on this certificate is 2.5% of the sale price. The plaintiff lodges the proceeds of the sale in court.
On completion of the sale, the two elements of the proceedings come together:
» The Examiner signs the certificate of incumbrancers. This certificate then forms the basis for a draft payment schedule, presented to the court as part of the application to pay funds out of court. Court duty of 2.5 % is payable. An additional court duty of 2.5 on the value of claims admitted may apply.
How the proceedings are completed
There are generally two ways to finalise a mortgage suit.
- Settlement of the claim between the parties, leading to a court order discharging the well charging order. The parties may settle at any point in the proceedings. While the plaintiff and defendant may settle a claim, other incumbrancers may need to be on notice of the motion to discharge the well charging order.
- A court order directing payment of the proceeds of sale out of court.
The documents required at the Notice to Proceed stage
- Notice to proceed plus five copies - details of stamp duty required are available in our Court Fees section.
- Attested copy of well charging order bearing endorsement of service.
- Plain copy of every document referred to in the schedule(s) to the well charging order.
- Recent copy folio from the Property Registration Authority or a Registry of Deeds search.
- Recent Companies Office Search (if the defendant is a company).
- Plain copy of special summons.
- Plain copy of filed affidavit of service of special summons on defendant(s).
- Plain copy of filed affidavit of service of well charging order on defendant(s).
- Letter addressed to the Examiner stating:
(a) that the defendant has not come into court and disputed the amount found due in the time specified.
(b) whether or not any payments have been made since the date of the well charging order. If any payments have been made, provide details of the amount(s) paid and date(s) of payment.
(c) that no notification of appeal has been received by the solicitor for the plaintiff.
(d) whether or not an appearance has been entered. If an Appearance has been entered, a copy of the Memorandum of Appearance should be lodged.
(e) whether or not any other orders have been made in the proceedings since the date of the well charging order and, if any other orders have been made, copies same should be lodged.
(f) whether or not property is a family home.