Part 66 – Mortgage Claims

Scope of this Part

66.1

1. This Part deals with claims by a mortgagor or mortgagee for any of the following forms of relief –
   1. foreclosure;
   2. delivery of possession by the mortgagee;
   3. payment of moneys secured by a mortgage;
   4. possession of a mortgaged property;
   5. reconveyance of the property or release from the mortgage;
   6. redemption of a mortgage; and
   7. sale of a mortgaged property.
2. In this Part —
   • “mortgage” includes a legal or equitable charge and a legal or equi­table mortgage;
   • “mortgage claims” means the claims by a mortgagee or mortgagor for any of the forms of relief referred to in paragraph (1);
   • “mortgagee” means the person to whom the mortgage was granted; and
   • “mortgagor” means the person who has granted a mortgage of the mortgaged property.
3. This Part does not apply to Saint Lucia.
4. This Part does not affect any procedure under any enactment relating to the registration of title to land unless court proceedings are taken.

Mortgage claim to be by fixed date claim

66.2

1. A mortgage claim is made by issuing a fixed date claim in Form 2.
2. Notice of the claim must be given to all other mortgagees of the land.
   • Rules 8.1 and 27.2 deal with the procedure relating to fixed date claims.

 Evidence at first hearing

66.3

1. A claimant who seeks final judgment at the first hearing must –
   1. file evidence on affidavit in support of the claim;
   2. serve –
      1. a copy of the affidavit but not the exhibits; and
      2. a notice stating what relief is sought; with the claim form; and
   3. file a certificate of service not less than 7 days before the first hearing.
      • Rule 28.16 enables a party to require copies of any document referred to in an affidavit.

Claim for possession or payment of mortgage debt

66.4

1. On a claim for possession of the mortgaged property or for payment of the mortgage debt the claimant must file with the claim form evidence by affidavit –
   1. exhibiting a copy of the original mortgage;
   2. exhibiting a copy of any other document which sets out the terms of the mortgage; and
   3. giving particulars of –
      1. the amount of the advance;
      2. the interest payable under the mortgage;
      3. the amount of any periodic payments required to be made stating whether or not such payments include interest;
      4. the amount of repayments that have been made;
      5. the amount of any repayments or interest due but unpaid at the date of the claim and at the date of the affidavit;
      6. the amount remaining due under the mortgage; and
      7. if the claim includes a claim for interest to judgment – the daily rate at which such interest accrues.
2. If the claimant seeks possession of the mortgaged property, the claimant must also file with the claim form evidence by affidavit –
   1. giving details of any person other than the defendant and the defendant’s family who to the claimant’s knowledge is in occupa­tion of the mortgaged property; and
   2. stating the circumstances under which the right to possession arises.
3. 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 a notice when and how that notice was served.