Judgement Mortgages
Once judgement has been marked against a particular debtor, property searches can be done to reveal if that debtor possesses property within the state. When a debtor’s property has been identified, we would commonly check for other encumbrances on the property e.g. a mortgage from a financial institution. We can then register a judgement as a mortgage against their property.
Registration of a Judgement mortgage means that a Judgement sum is secured as a mortgage against the property for a period of up to twelve years. If in that time the debtor sells his property or re-finances his Mortgage he will have to pay off the sum owed as well as statutory interest and costs.
A judgement mortgage can be registered on either registered or unregistered property and it can be registered on the family home of a debtor, notwithstanding the fact that the spouse of the debtor may be a joint owner and not owe any outstanding debt. It is not necessary to obtain the consent of a spouse to allow a charge to be registered on the family home with a judgement mortgage.
Under the Land and Conveyancing Law Reform Act 2009 a judgement can be registered as a judgement mortgage by applying to the Property Registration Authority and filling out the necessary forms depending on whether the land is question is registered or unregistered and providing an Affidavit of Judgement. The Land Registry may raise queries which we would deal with.
It is also open to the Judgement creditor to apply to Court to have the Judgement Mortgage declared well charged on the property and proceed to have the property sold through the Courts.
Well Charging Order
Once the judgement mortgage is registered as a burden, the creditor can then apply to Court to get a Well Charging Order and Order for Sale. This is a request from the creditor to the Court to recognise that their judgement mortgage is well charged on the property and to be granted an order for sale of the property. The court, however, has a wide discretion to grant any order it sees fit and it can make a range of other orders as well including adjustment orders between joint owning owners and any other order it deems appropriate.
Order For Sale Execution
If and when the judgement creditor obtains an Order for Sale from court, in the Circuit Court or High Court, that creditor will have to apply to have the property sold through the Examiner’s office in the High Court or the Circuit Court and the Courts will arrange the sale of the property.
If your judgement was obtained in an EU country then there is a procedure to have your judgement recognised and enforced in Ireland but if your judgement was obtained against an Irish debtor in a non EU country, then it is generally necessary to go through the Court process in Ireland.
EU judgements
If your judgement is an EU obtained judgement then the Brussels I regulation provides that your judgement will be recognised in all EU member states. To enforce the judgement it may be necessary to go through a procedure involving making an application to the Master of the High Court in Ireland for a Declaration of Enforceability. Once we have obtained the Declaration then the foreign judgement will have the same effect and weight as if it had been obtained in the High Court in Ireland.
A judgement which has been certified as a European Enforcement Order in the member state of origin shall be recognised and enforced in Ireland without any need for a declaration of enforceability being made by the Master of the High Court. In that case, the creditor must provide the judgements Section of the High Court Office with:
(i) a copy of the judgement,
(ii) a copy of the European Enforcement Order certificate.Non EU judgements
Judgments obtained abroad, outside EU member States, are not generally capable of registration as judgment mortgages. However, the High Court has jurisdiction to make enforcement orders, in respect of foreign judgments, made by Courts of competent jurisdiction, for payment of fixed money sums. Where the debtor’s assets include registered lands, which are specified in the order, such an order would be registerable as a burden.
Conor Lennon
McKeever Rowan Solicitors
IFSC
Dublin 1
20th September 2011
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