CC17 - Proceedings for possession or sale on foot of a mortgage
The Circuit Court
Proceedings for possession or sale on foot of a mortgage
1. This practice direction should be read in conjunction with Order 5B of the Circuit Court Rules, as amended.¹
2. Civil bill - pleading of jurisdiction
A civil bill must show jurisdiction on its face, accordingly the Indorsement of Claim on a civil bill for possession or sale on foot of a mortgage should, in accordance with Form 2R of the Schedule of Forms of the Circuit Court Rules, contain a statement as to which of the following applies (as may be appropriate to the claim the subject-matter of the proceedings):
(a) the rateable valuation of the mortgaged property does not exceed €253.95;
(b) the proceedings are commenced in the Circuit Court pursuant to section 101(5) of the Land and Conveyancing Law Reform Act 2009;
(c) the proceedings are commenced in the Circuit Court pursuant to section 3 of the Land and Conveyancing Law Reform Act, 2013
and that the property in question is located in the relevant Circuit.
3. Proofs - non exhaustive list
When applying for an order for possession, the following proofs are required as a minimum:
(a) evidence of service of the proceedings on the borrowers and all persons in occupation over 18 years (if applicable). Affidavits or declarations of service should contain a statement that there are no persons in occupation other than those served;
(b) certified copies of the letter(s) sent to the defendant
(i) as required by the Practice Direction of the 12th November 2009
(ii) of notification of any adjournment date(s);
(c) the grounding affidavit should, in accordance with Form 54 of the Schedule of Forms of the Circuit Court Rules, include averments as to the following and exhibit the following documentation:
A. verification of the factual matters in the civil bill;
B. precise particulars of the property to which the proceedings relate, exhibiting any relevant document (e.g. up to date certified copy folio);
C. precise particulars of the occupancy of the property;
D. precise particulars of the security on which the plaintiff relies, exhibiting any relevant document (e.g. deed of mortgage) and, where applicable, evidence of any consent to the giving of the security for the purposes of section 3 of the Family Home Protection Act 1976 or section 28 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;
E. precise particulars of the loan agreement on which the plaintiff relies, exhibiting any relevant document (e.g. the facility letter) on which the plaintiff relies, exhibiting same if in writing and not previously exhibited, and if not in writing, set out particulars of the agreement;
F. precise particulars of the arrears alleged to be owed or other default alleged by the defendant, or other matter on which the plaintiff relies in support of the claim in the proceedings, exhibiting relevant documents including relevant communications and letters of demand relied upon and up to date statement of mortgage arrears;
G. where a provision(s) of the Central Bank code (under section 117 of the Central Bank Act 1989) applies, sufficient information to enable the Court to evaluate the extent to which the plaintiff has been in compliance with the same;
H. where the name of the mortgagee company has changed, or the rights of the mortgagee under the mortgage have been transferred or assigned to another party, proof (as the case may be) of the name change (e.g. as recorded in the Companies Registration Office) or of the instrument of transfer or assignment.
4. Inquiries concerning defendant’s whereabouts
In order to minimise delays, practitioners should make all reasonable efforts to ascertain the whereabouts of the Defendants to proceedings prior to the issue of the civil bill. If a defendant is residing outside of the European Union, prior to commencement of proceedings plaintiffs should apply to the County Registrar for leave to issue the proceedings for service outside the jurisdiction, in accordance with Order 13 of the Circuit Court Rules.
5. Certificate of compliance
The solicitor for the plaintiff shall at the time of presenting the civil bill for issue lodge with the court office a certificate to the effect that the requirements of this direction have been complied with.
6. Applications for adjournment
Order 5B rule 8(3) prescribes the evidence required to be given on affidavit where an application by a defendant for an adjournment under section 101(1)(a) or for relief under section 101(1)(b) of the Land and Conveyancing Law Reform Act 2009 is being sought. These provisions apply to mortgages created by deed after the 1st December 2009. In respect of mortgages created prior to that date where the defendant is not contesting the plaintiff mortgagee's legal entitlement to the relief sought in the proceedings, an application by the defendant for an adjournment to enable the defendant to pay off the mortgage in full or to come to an arrangement with the lender as to the repayment of the mortgage should be supported by an affidavit setting out or exhibiting a statement of the assets and liabilities of the defendant and setting out detailed particulars of the defendant’s proposal to make such payment.
7. Commencement and application
This direction shall commence in effect on the 17th day of August 2015 and shall apply to proceedings instituted on or after that date.
Dated this 10th day of August 2015
President of the Circuit Court
¹ Viz. by S.I. No. 358 of 2012 and S.I. No. 346 of 2015