Taking Possession of Mortgage Goods

After the 30 day period granted by section 80 notice has expired, a lender can then commence enforcement proceedings. For secured contracts, this will involve employing a repossession agent to seize and sell any secured goods.

There are a number of restrictions on a lender’s right to repossess secured goods.

Remember that these restrictions only apply to mortgaged goods. Mortgagee possession of real property follows different procedures, normally culminating with a writ in the Supreme Court.

Less than 25% owing on the contract under s 83 of the Code, a lender cannot repossess mortgaged goods if the current balance of the loan is less than 25% of the amount of the credit provided, or $10,000.00 (whichever is the lesser)

However, the lender can nevertheless repossess if:

  • The Court consents to the repossession

  • The loan is a continuing credit contract (although these are rarely if ever secured over goods)

  • The lender believes that the debtor has disposed of, or intends to dispose of mortgaged goods, or that urgent action is necessary to protect the mortgaged property

Entry onto residential premises under section 91 of the Code, a lender or its agent cannot enter onto residential premises to repossess mortgaged goods unless:

  • The Court has authorized entry

  • The occupier has consented in writing, after being informed in writing of the provisions of section 91

 

Consent under section 91 can only be obtained from an occupier if the lender complies with r 24 of the Consumer Credit Regulations 1995.