Remedies of the Mortgagee:

1. Foreclosure

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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

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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

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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

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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.

2. Possession

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The mortgagor's possession o Mortgagees can technically take possession immediately after mortgage agreed
? But mortgagors will generally be in possession

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Thus, where possession is sought or taken, the mortgagor must be allowed the opportunity to redeem

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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

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Birmingham Citizens BS v Caunt [1962]
o Russell J:
? Where mortgagee is entitled to possession by reason of default of mortgagor -and the whole money has become payable -

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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;

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but it should not be done if there is no reasonable prospect of this occurring

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Quennell v Maltby [1979]: 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

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bona fide

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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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