The Rules of the Supreme Court (Northern Ireland) (Revision) 1980

ORDER 88MORTGAGE ACTIONS

Application and interpretation

1.—(1) This Order applies to any action (whether begun by writ or originating summons) by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being an action in which there is a claim for any of the following reliefs, namely—

(a)payment of moneys secured by the mortgage,

(b)sale of the mortgaged property,

(c)foreclosure,

(d)delivery of possession to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property,

(e)redemption,

(f)reconveyance of the property or its release from the security,

(g)delivery of possession by the mortgagee.

(2) In this Order “mortgage” includes a legal and an equitable mortgage and a legal and an equitable charge, and references to a mortgagor, a mortgagee and mortgaged property shall be construed accordingly.

(3) An action to which this Order applies is referred to in this Order as a mortgage action.

(4) These Rules apply to mortgage actions subject to the following provisions of this Order.

[E.r. 1]

Assignment of certain actions to Chancery Division

2.  Without prejudice to Order 1, rule 10, any action in which there is a claim for—

(a)payment of moneys secured by a mortgage of any real or leasehold property, or

(b)delivery of possession to the mortgagee of any such property by the mortgagor or by any other person who is or is alleged to be in possession of the property,

shall be assigned to the Chancery Division.

[E.r. 2]

Commencement of action

3.  The writ or originating summons by which a mortgage action is begun shall be indorsed with or contain a statement showing—

(a)where the mortgaged property is situated, and

(b)if the plaintiff claims possession of the mortgaged property, whether the property consists of or includes a dwelling house and, if so, whether the dwelling house is one to which the Rent (Northern Ireland) Order, 1978, applies.

[E.r. 3]

Documents to be lodged on taking appointment for hearing

4.—(1) The plaintiff in a mortgage action in the Chancery Division begun by originating summons, on applying for an appointment under Order 28, rule 2(1), must produce the originating summons and leave in the Chancery Office—

(a)a copy of the originating summons, and

(b)the copy memorandum of appearance, stamped in accordance with Order 12, rule 4, of any defendant to the action or, if any defendant has failed to enter an appearance, a certificate of his non-appearance.

(2) Not less than 2 clear days before the day fixed for the first or any adjourned hearing of the originating summons the plaintiff must leave in the Chancery Office the original or an office copy of any affidavit intended to be used by him at the hearing with the exhibits thereto.

[E.r. 4]

Claim for possession: non-appearance by a defendant

5.—(1) Where in a mortgage action in the Chancery Division begun by originating summons, being an action in which the plaintiff is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage or both, any defendant fails to enter an appearance, the following provisions of this rule shall apply, and references in those provisions to the defendant shall be construed as references to any such defendant.

This rule shall not be taken as affecting Order 28, rule 3, or rule 5(2), in so for as it requires any document to be served on, or notice given to, a defendant who has entered an appearance in the action.

(2) Not less than 4 clear days before the day fixed for the first hearing of the originating summons the plaintiff must serve on the defendant a copy of the notice of appointment for the hearing and a copy of the affidavit in support of the summons.

(3) Where the plaintiff claims delivery of possession there must be indorsed on the outside fold of the copy of the affidavit served on the defendant a notice informing the defendant that the plaintiff intends at the hearing to apply for an order to the defendant to deliver up to the plaintiff possession of the mortgaged property and for such other relief (if any) claimed by the originating summons as the plaintiff intends to apply for at the hearing.

(4) Where the hearing is adjourned, then, subject to any directions given by the Court, the plaintiff must serve notice of the appointment for the adjourned hearing, together with a copy of any further affidavit intended to be used at that hearing, on the defendant not less than 2 clear days before the day fixed for the hearing.

A copy of any affidavit served under this paragraph must be indorsed in accordance with paragraph (3).

(5) Service under paragraph (2) or (4), and the manner in which it was effected, may be proved by a certificate signed by the plaintiff, if he sues in person, and otherwise by his solicitor.

The certificate may be indorsed on the affidavit in support of the summons or, as the case may be, on any further affidavit intended to be used at an adjourned hearing.

(6) A copy of any exhibit to an affidavit need not accompany the copy of the affidavit served under paragraph (2) or (4).

(7) Where the plaintiff gives notice to the defendant under Order 3, rule 6, of his intention to proceed, service of the notice, and the manner in which it was effected, may be, proved by a certificate signed as mentioned in paragraph (5).

[E.r. 5]

Action in Chancery Division for possession or payment: evidence

6.—(1) The affidavit in support of the originating summons by which an action to which this rule applies is begun must comply with the following provisions of this rule.

This rule applies to a mortgage action in the Chancery Division begun by originating summons in which the plaintiff is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage or both.

(2) The affidavit must exhibit the original mortgage or a true copy thereof, and the original mortgage or, in the, case of a registered charge, the certificate of charge must be produced at the hearing of the summons.

(3) Where the plaintiff claims delivery of possession the affidavit must show the circumstances under which the right to possession arises and, except where the Court in any case or class of case otherwise directs; the state of the account between the mortgagor and mortgagee with particulars of—

(a)the amount of the advance,

(b)the amount of the periodic payments required to be made,

(c)the amount of any interest or instalments in, arrear at the date of issue of the originating summons and at the date of the affidavit, and

(d)the amount remaining due under the mortgage.

(4) Where the plaintiff claims delivery of possession, the affidavit must give particulars of every person who to the best of the plaintiff's knowledge is in possession of the mortgaged property.

(5) If the mortgage creates a tenancy other than a tenancy at will between the mortgagor and the mortgagee, the affidavit must show how and when the tenancy was determined and if by service of notice when the notice was duly served.

(6) Where the plaintiff claims payment of moneys secured by the mortgage, the affidavit must prove that the money is due and payable and give the particulars mentioned in paragraph (3).

(7) Where the plaintiff’s claim includes a claim for interest to judgment, the affidavit must state the amount of a day's interest.

[E.r. 6]

Action by writ: judgment in default

7.—(1) Notwithstanding anything in Order 13 or Order 19; in a mortgage action begun by writ judgment in default of appearance or in default of defence shall not be entered except with the leave of the Court.

(2) An application for the grant of leave under this rule must be made by summons and the summons must, notwithstanding anything in Order 65, rule 9, be served on the defendant.

(3) Where a summons for leave under this rule is issued in an action in the Chancery Division, rule 5(2) to (7) shall apply in relation to the action subject to the modification that for references therein to the originating summons, and for the reference in paragraph (2) to the notice of appointment there shall be substituted references to the summons.

(4) Where a summons for leave under this rule is issued in an action to which rule 6 would apply had the action been begun by originating summons, the affidavit in support of the summons must contain the information required by that rule.

[E.r. 7]

Action for sale of mortgaged property : parties: disposal of surplus proceeds of sale: sale of unsold property

8.—(1) This rule applies to a mortgage action in the Chancery Division in which the plaintiff is a mortgagee and claims sale of the mortgaged property.

(2) Notwithstanding anything in Order 15, rule 4(2), and without prejudice to the powers of the Court under that Order, no other mortgagee or trustee for such mortgagee need be a party to the action unless he is in actual possession or receipt of the rents and profits of the mortgaged property.

(3) A person at whose suit or for whose benefit a receiver has been appointed, or continues to receive the rents and profits of the mortgaged property, shall not be deemed to be in receipt of such rents and profits within the meaning of paragraph (2).

(4) Where mortgaged property has been sold and surplus produce of such sale remains in court after payment of the demands and costs of the plaintiff and prior and contemporaneous mortgages, the Court may order such surplus to be distributed amongst the mortgagees who have proved their demand in the action under an inquiry directed pursuant to paragraph (6), according to their priorities.

(5) Where any part of the mortgaged property the subject of such action remains unsold after payment of the plaintiff's demand, and, prior and contemporaneous mortgages, any mortgagee subsequent in order, of priority to the demand of the plaintiff may apply to the Court for an order directing a sale of such unsold property, or a competent part thereof, for payment of the demands subsequent to that of the plaintiff which have been proved as aforesaid, and the Court may direct such sale if it shall be of opinion that such mortgagees, or any of them, would be entitled to have their demands raised by a sale of such property, or may direct a receiver to be appointed or continued over such unsold property, for the benefit of such subsequent mortgagees, and distribute the funds to be received by such receiver accordingly.

(6) Subject to paragraph (7), an order for sale in a mortgage action shall direct an account to be taken of all mortgages subsequent as well as prior to, or contemporaneous with, the plaintiff's demand, and an inquiry as to the respective priorities of all such demands as shall be proved.

(7) If the Court shall be of opinion that extending the account to mortgages subsequent to the demand of the plaintiff will improperly delay the plaintiff in recovering his demand, the account may be confined to the rights of the plaintiff and of mortgagees prior to and contemporaneous, with him.