Lodging a Memorandum of Appearance - Mortgage stress
If you are planning to defend the claim, or make a counterclaim against the lender, it is essential that you get legal advice before you file any documents with the court.
Going to court is risky and potentially costly!
Supreme Court proceedings are costly. If you do not have a valid defence and lose, you will usually be ordered to pay the reasonable legal costs of the lender. This is added to the amount you already owe the lender under the loan.
You should get legal advice about your situation before lodging a Memorandum of Appearance.
Defending a claim
If you are served with a Writ and want to defend the claim, the first step is to enter an appearance by filing a Memorandum of Appearance within the time set out in the Writ. This tells the court and the lender that you intend to participate ('appear') in the court process.
- By entering an appearance, you are saying you want to defend the action. If you enter an appearance but do not have a valid defence, you will add to the costs you owe.
- If you do not file a Memorandum of Appearance, the lender can apply for a court order giving it the right to repossess your property. This is called a ‘default judgment’.
- If you do file a Memorandum of Appearance, but agree you are in default without any defence, the lender may still apply for a judgment without going to trial. This is called a 'summary judgment'.
Before you lodge a Memorandum of Appearance, , get legal advice and make sure that you are going to court for the right reason.
'There is no way I owe that much, so I will take the bank to court'
If you are worried that you are being asked to pay more than you think you owe, remember the contract allows your lender to charge default interest and other costs (such as court and enforcement costs). If you think the amount claimed has been miscalculated, you can take the dispute to the relevant External Dispute Resolution (EDR) scheme.
'I think I have a defence'
Time limits apply for entering an appearance, so you need to act quickly. If you think you have a defence for defaulting on your home loan, get legal advice to make sure it has a reasonable chance of success. If possible, do this before you enter an appearance.
How to lodge a Memorandum of Appearance
To enter an appearance, you need to complete and file a Form 6 - Memorandum of Appearance at the Supreme Court of WA registry. You can get a copy of the form from the Supreme Court registry office.
There is no filing fee to lodge a Memorandum of Appearance. Once you have filed your Memorandum of Appearance, you will need to give a copy to the lender's lawyer.
How can I get my court documents to the court?
To file documents (including a Memorandum of Appearance) with the court, you need to use the court's eLodgment system. To register:
- Go to the eCourts Portal and click on 'Register' at the top of the screen.
- Fill in the registration form. You will need to provide your personal details including full name, date of birth, contact number and email address.
- Choose the 'Self-Represented Litigant' option and complete the questions under 'Individuals'. If you are filing documents in an existing court case, provide the court matter number when you register.
It may take up to 24 hours for your registration to be approved. Once approved, you can log in to the eCourts Portal to file your documents with the court.
More information about eLodgment is available from the Supreme Court of WA website.
How do I serve the lender with my Memorandum of Appearance?
Once you have filed your Memorandum of Appearance using eLodgment, the court will send a stamped copy to your eCourts Portal inbox. You need to serve that stamped copy on the lender's lawyer.
- This needs to be done on the same day you file your Memorandum of Appearance.
- The stamped Memorandum of Appearance can be served by delivering, posting, faxing, or emailing it to the lender's lawyer. The Writ of Summons will have the addresses and details for serving documents on the lender's lawyer.
Checklist for lodging a Memorandum of Appearance
If you are entering an appearance you must:
- Get legal advice. Make sure you have a reasonable chance of success.
- Register for eLodgment (this should be done as early as possible as it can take time to have your registration approved).
- Lodge the Memorandum of Appearance through the eCourts Portal before the time to respond to the Writ expires and before the lender gets a judgment from the court. There is no filing fee for lodging a Memorandum of Appearance.
- Deliver or send the stamped copy of the Memorandum of Appearance sent from the court to the lender’s lawyer on the same day you lodged the Memorandum of Appearance.
