I need more time - Mortgage stress
Once the lender has a court judgment, it is entitled to have it enforced straight away. This usually involves repossession (eviction) and the lender selling the property.
There may be some good reasons for why you want the lender to hold off from enforcing the judgment, such as:
- You have sold your home and are just waiting for the settlement date to occur.
- You need extra time to move out due to a medical condition, or you have another good reason why you cannot find alternative accommodation at short notice.
- You have approval to refinance your home loan and you just need time to complete that process. Note that with this option you are likely to have trouble refinancing given a judgment will show on your credit file.
If you need more time before a judgment is enforced, the first step is to contact the lender and ask it to stop enforcement proceedings.
If the lender does not agree, you may be able to use the Australian Financial Complaints Authority (AFCA), an EDR scheme for consumer complaints against lenders, to help you negotiate with the lender. In special circumstances, you can also apply for a court order to have enforcement proceedings suspended.
Lodging a dispute with AFCA
If your lender is a member of AFCA, you may be able to lodge a complaint to get help to negotiate:
- more time to sell the property yourself
- more time to refinance, or
- more time to move out of your home after judgment.
You can only do this if you want to delay a default judgment being enforced:
- on the basis of financial difficulty, and
- your lender has previously said no to your financial hardship request, and
- your request has not previously been dealt with by AFCA.
Applying for a suspension order
If the lender will not agree, you need to apply to the court for a suspension order. This is an order that suspends enforcement of a judgment for a certain period of time, as specified by the court. Suspension orders are only given in exceptional circumstances and normally only last for a few weeks.
It is very difficult to get long term suspension of enforcement proceedings. This process is mainly used to get a stay for a few weeks (or less commonly months).
These orders are difficult to get. You should get legal advice before applying for a suspension order.
How do I apply for a suspension order?
You will need to apply to the Supreme Court of WA (to the same court that made the judgment). You need to complete and lodge:
- a Form 9 - Application for a Suspension Order (available under 'Civil Judgments Enforcement Act Forms' on the Magistrates Court website), and
- an affidavit in support
When completing these forms, the lender is 'the judgment creditor' and you are 'the judgment debtor'.
What goes in my affidavit?
An affidavit is a document that contains sworn or affirmed evidence that can be used in court proceedings. An affirmation is a declaration that the evidence to be given is the truth and is used instead of taking a religious oath.
The affidavit should set out the special circumstances you want to rely on for why the court should prevent the lender from enforcing its judgment.
You should get legal advice before completing your affidavit. A person can be prosecuted for providing false sworn or affirmed evidence to the court.
How do I lodge my application?
Details about how to file documents using the Supreme Court's eLodgment system are available on the page Lodging a Memorandum of Appearance.
What do I do after I lodge the application?
Once the application is lodged with the court, you need to personally serve the lender with a stamped copy of the application and affidavit. You should do this as soon as you get the stamped copies from the court and must serve the lender at least three working days before the court hearing date for the application.
These documents must be served personally. To personally serve a document on a corporation, you must:
- hand the document to a person who, on reasonable grounds, is believed to be a director, manager or company secretary of the corporation, or
- leave the document with a lawyer who is acting for the corporation and has instructions to accept service of documents.
Alternatively, you can pay an enforcement officer (for example, a bailiff) to serve the application and affidavit on your behalf.
The court requires proof that your application has been served. If an enforcement officer serves the document, the enforcement officer will provide you with a certificate of service.
If you serve the application yourself, you must complete and lodge an affidavit of service that states what documents were served, and when, where and how they were served. You can get a blank affidavit template from the Supreme Court website.
You must go to court on the hearing date listed on your application.
What to do if you get a suspension order
If the suspension order is granted by the court and you know that the sheriff already has an order to enforce the judgment (such as a Property (Seizure and Delivery) Order), you must give a copy of the suspension order to the sheriff. This can be done by delivering them or posting them to the Sheriff's Office at Perth.
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