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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 18744
Experience:  I have been practising for 30 years.
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Does a mortgagor/lender under an equitable charge have to

Customer Question

Does a mortgagor/lender under an equitable charge have to give notice to a borrower/mortgagee who is in default, notice before exercising power of sale?
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Good afternoon. I will assist with your question - be aware this is an email not chat service.

can you give me the background to your question please

Customer: replied 1 year ago.
Thank you. ***** ask before I go ahead if any of the detail I provide you with will be able to be viewed by anyone if searching for similar details, etc. Like search engines, members of Just Answer, etc?
Expert:  F E Smith replied 1 year ago.

This is a public forum but no one knows who you are, or where you are, including me.

The mortgagor is the borrower and the mortgagee is the lender.

Lenders would normally have a legal charge rather than an equitable one. If you can let me have the full detail, I can expand my reply.

Customer: replied 1 year ago.
It's not a legal charge. It's equitable. It's between private individuals for a principal sum secured against a residential property owned by the mortgagor (with a first charge mortgage). Mortgagor has defaulted on payments.
Expert:  F E Smith replied 1 year ago.

I would need to see the title deed please and have the full background because it’s very difficult to answer what is in effect a hypothetical question.

Your question is quite simply whether the lender could just take the borrower to court to repossess the property just because the borrower is in default and whether he could do so without giving notice of the application, he can do what he likes BUT if he hasn’t give notice he risks having his claim struck out and having costs awarded against him for unreasonable conduct.

Thank you