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MORTGAGE ENFORCEMENT (BORROWER BEWARE)

November 30, 2020 by admin

In times of financial strain, it may be difficult for the Borrower to make the required repayments under the mortgage when they fall due. It is very important to read all the terms and conditions of the mortgage prior to signing the mortgage contract so the Borrower understands all its terms and conditions. Once the mortgage is signed it is extremely rare and difficult for the terms of a registered mortgage to be set aside by a Court.

If the Borrower is in default of the mortgage, the Lender can enforce their power of sale under the Transfer of Land Act 1958 (VIC) (‘TLA’) to sell the property. Before a Lender can enforce their power of sale, they must serve a valid Notice of Default on the Borrower and allow the Borrower reasonable time to rectify the default which may be non-payment.

A Notice of Default

The Lender should refer to legislation and the specific default provisions of their mortgage contract before issuing a Notice of Default to ensure that the notice is valid.

A Default Notice should:

Lender (Mortgagee) in Possession Sale.

If the default is not rectified, the Lender can then enforce its power of sale pursuant to section 77 of the TLA. The Lender has a duty to act in good faith and take reasonable care to sell the property for the best price reasonably available. Determining if a Lender upheld such duty would require the consideration of whether or not an appropriate:

Written by Stefanie Lucca

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