At the conclusion of 30 days Bransgroves file for a default judgment. This means we seek judgment for possession on the basis that the security owner has not filed a defence. This is a paper driven process involving filing documents with the court through its online portal.
The court usually turns such applications around within a few days to a week. The document that comes back is a judgment for possession and an order to the sheriff, known as a writ, to evict and turn over possession to the lender’s locksmith and real estate agent (who take possession on your behalf).
Sometimes the borrower will file a defence which on its face is no defence at all. For example they might say that their business has suffered reverse due to a major customer going into liquidation and they just need six months to turn things around and rectify the debt. Such defences are not filed by lawyers (who know better) but rather are typically filed by the borrower themselves.
If such a defence is filed there is no need to have a trial. Instead Bransgroves, on behalf of the lender, files a motion to strike out the defence and award summary judgment. In some jurisdictions the possession list judge has this power even without such an application being made.
There is a dedicated judge nominated by the court each week to deal with such applications.
An adjudicated judgment is needed where the security property owner files a defence which is arguable. An example of an arguable defence is one which could, if true, result in a modification of the lender’s demands.
The main defences that tend to be raised are:
- The lender made me an oral promise not to enforce the mortgage while I sought to sell the property on my own
This defence is why it is unwise to communicate with the borrower except in writing through your lawyers. In any event even if you did communicate with the borrower it never succeeds because it is not believable, or is open ended or the borrower did nothing to earn such a promise (even if it was made).
- The mortgage terms are unconscionable or unjust
This defence never succeeds unless the lender is an unconscionable loan shark charging usurious rates of interest. Bransgroves does not act for loan sharks.
- The entering into of the mortgage in the circumstances is