A more recent version of these Remedies Of The Mortgagee notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Land Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Remedies of the Mortgagee:
Traditional right of mortgagee is to ask the court to put end to equitable right to redeem o This is inapplicable until after the legal date for redemption has passed o And mortgagor normally has six months to pay off the mortgage
Smith: However, power is rarely exercised these days o If property is worth more than the debt, than it is more advantageous that the mortgagee sell the property
? Which will ensure that the debt and other expenses are paid off
With the remaining balance given to the mortgagor o If property is worth less than the debt
? Then foreclosure will bar the mortgagee from claiming anything more than the value of the property sold from the mortgagor
Because the mortgagor has lost the right to redemption o The mortgagee will lose the right to sue for the balance of the debt
? And the value of the property will have to suffice.
The mortgagor's possession o Mortgagees can technically take possession immediately after mortgage agreed
? But mortgagors will generally be in possession
Thus, where possession is sought or taken, the mortgagor must be allowed the opportunity to redeem
Smith: regardless, possession not normally taken until default b/c point of taking possession is to exercise power of sale
- which isn't available until default. Court's jurisdiction to postpone possession under common law
Birmingham Citizens BS v Caunt 
o Russell J:
? Where mortgagee is entitled to possession by reason of default of mortgagor -and the whole money has become payable -
The court has no jurisdiction to decline to make the order or to adjourn the hearing.
? The sole exception is where a short adjournment would afford the mortgagor a chance to pay off the mortagee in full or otherwise satisfy him;
but it should not be done if there is no reasonable prospect of this occurring
Quennell v Maltby : wife of mortgagor bought mortgage from bank, tried to use it to evict tenants by taking possession when bank had previously refused to do so. o Lord Denning:
? Equity should be able to step in and restrain a mortgagee from getting possession unless it is
and is reasonably for the purpose of enforcing the security o Not for any ulterior motive as in the present case.
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