The Rules of the Supreme Court (Northern Ireland) (Amendment No. 2) 1999

Rule 9(2)

SCHEDULE 2 Form to be inserted in Appendix A after Form 10

No. 10A Notice to defendant in lender’s action for possession of dwelling-house on default of mortgage payment(O.88, r. 4A)

[Heading as in summons]

To [name of defendant] of

Take notice that:

1.  The Court has statutory powers to adjourn the proceedings or (at any time before the execution of a judgment or order) stay or suspend execution of a judgment or order for possession or postpone the date of delivery of possession for such period or periods as the Court thinks reasonable if it appears to the Court that in the event of its exercising the power the mortgagor is likely to be able to within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage.

2.  Those powers are set out in section 36 of the Administration of Justice 1970 as amended by section 8 of the Administration of Justice Act 1973. Since the Court must be satisfied under those sections that the mortgagor within a reasonable time is likely to be able to pay any sums due under the mortgage, there must be material before the Court which is of sufficient weight to satisfy the Court of that likelihood.

3.  There are a number of steps you should immediately consider taking if you want the Court to exercise its discretion under those powers in your favour, namely—

(a) consulting a solicitor or taking other advice (for example, from the Housing Rights Service or a branch of the Citizen’s Advice Bureaux);

(b) preparing (or having your advisers prepare) a detailed written budget setting out your income and outgoings and indicating the resources available to discharge the arrears on the mortgage (where your mortgage involves payment by instalments) or the entire mortgage debt, if necessary by regular payments over a period of time in addition to the normal regular payments you are required to make under your mortgage;

(c) working out carefully what you consider to be your best realistic proposal to discharge arrears of instalments or the entire mortgage debt; if you (with the help of your advisers, if any) cannot realistically propose that you discharge the arrears of mortgage payments or the entire mortgage debt out of resources other than the mortgaged property itself, you should consider whether you should try to sell the mortgaged property (or, if practical, a part of it) in order to discharge the debt, with a view to seeking the exercise of the Court’s discretion so as to give you an adequate opportunity to sell the property;

(d) attending the hearing as detailed in the notice of appointment or summons that has been served on you, where you should be in a position to provide—

(i) an explanation for the default in meeting your obligations under the mortgage;

(ii) details of your financial and other relevant circumstances;

(iii) your best realistic proposal to discharge the outstanding debt or, where (or insofar as) the mortgage debt is repayable by instalments, the arrears of mortgage instalments together with any normal mortgage instalments that become due;

(e) bringing to the hearing documents to vouch details of your financial and other relevant circumstances (for example, your current or prospective salary, employment prospects and/or state benefits) and, where appropriate, documents relating to your endeavours to sell the premises or obtain a new loan on the security of the premises.

Your attention is drawn to the notes appended to this notice.

Dated the day of

(Signed)

Solicitor for the Plaintiff

NOTES

Details of the matters set out in paragraph 3(b), (c) and (d) should wherever possible be provided to the Court in advance of your attendance at the hearing, preferably by way of affidavit or affidavits exhibiting copies of all relevant documents and sworn by you and any other witnesses whose evidence you wish the Court to take into account. Affidavits should be filed in the Chancery Office, Room 1-19A, First Floor, Royal Courts of Justice, Chichester Street, BELFAST BT1 3JF. Where it is not possible to provide the documents and information referred to in advance of the hearing by way of affidavit, the Court may be prepared to consider oral evidence of those matters at the hearing or may adjourn the hearing to ensure that those matters are put on affidavit.

IF YOU DO NOT TAKE APPROPRIATE STEPS PURSUANT TO THIS NOTICE YOUR FAILURE TO DO SO IS AT YOUR OWN RISK