What a Mortgage Suit is
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 Mortgage Suit can result in a court making a Well Charging Order.
A well charging order
- 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.
How proceedings are started in the Examiner's Office
Ascertaining the incumbrancers and their respective priorities.
» 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).
Arranging the sale of the property
How the proceedings are completed
A court order directing payment of the proceeds of sale out of court.
The documents required at the Notice to Proceed stage
- Plain Copy of Special Summons.
- Plain copy of filed affidavit of service of Special Summons on Defendant(s).
- Plain copy of every document referred to in the Schedule(s) to the well charging order. This includes all exhibits to any Affidavits referred to in the schedule (s).
- Plain copy of filed Affidavit of Service of Well Charging Order on Defendant(s) if already filed in the Central Office. If the AOS has not yet been filed, it can be filed in the Examiner’s Office when the papers are being lodged for the Notice to Proceed.
- Attested copy of well charging order bearing endorsement of service. This is the attested copy of the WC order which should have been taken up from the Central Office of the High Court following the making of the Order. The actual attested copy should be endorsed by the server. It is the endorsed copy which should be furnished to this Office.
- Recent (in the last 3 months) sealed and certified copy folio including map from the Property Registration Authority or a Registry of Deeds search. A photocopy of the S&C folio is not acceptable.
- Recent Companies Office Search (if the Defendant is a company).
- Notice to Proceed plus number of copies required for service - details of stamp duty required are available in our Court Fees section. As at November 2020, the duty is €60 on the Notice to Proceed. Please note the Notice cannot issue until the stamp duty is received. If there is any doubt about whether the Defendant is represented, the Notice to Proceed should be served personally, or in accordance with any Order for Substituted Service made in the Well Charging Proceedings if applicable.
- 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. This is only relevant where the Well Charging Order includes an Order allowing the Defendant time to come into court and dispute the amount found due. If the Well Charging Order does not make any such provision then this matter is not applicable.
(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 of same should be lodged.
(f) whether or not property is a family home.
