The following instructions are issued by the Office of Titles Division for the guidance of applicants for Orders for Foreclosure under Mortgages registered under the Registration of Titles Act.
These instructions deal with the normal procedure for this type of application, but applicants may have to meet specific requisitions in particular cases. Applicants should therefore bear in mind the rules of Equity when making applications.
Applicants are asked to read these instructions carefully before lodging this type of application in the Office of Titles.
1. The application and all the statutory declarations should be headed:
“IN THE MATTER OF THE REGISTARTION OF TITLES ACT. AND IN THE MATTER of an application to the Registrar of Titles for an Order for Foreclosure in respect of the land comprised in Mortgage No._________ Registered at _________ Volume _________ Folio _________ in the Register Book.”
2. The fees on lodging the Application is Three Hundred Jamaican Dollars (Ja$300.00)
3. The duplicate Certificate of Title and duplicate Mortgage must be produced. If there is no duplicate mortgage, a Certified Copy must be obtained from the Office of Titles to be submitted with the application.
4. A Mortgagee of a Lease could foreclose against the Lease, the recital to the form of application being varied accordingly.
5. In Mortgages payable on demand there is no default until demand has been made. Default must continue for one month after the date for repayment arises before notice to pay the money owing on such Mortgage required by section 105 of the Registration of Titles Act can be properly served. A Statutory Declaration to prove that demand was made must be produced.
6. The foreclosure when registered, will extinguish all subsequent interests except a Lease which on its registration was consented to by the Mortgagee.
7. If the Mortgage is a contributory one then the foreclosure will vest the interest foreclosed in the Mortgage in the proportion set out in such Mortgage.
8. A separate Application must be made for each Mortgage except where two or more Mortgages are to the same Mortgagee over the same property.
9. If a Corporate Body is the Mortgagee, the Application should read:
“TO: THE REGISTRAR OF TITLES”. The A. Co…Ltd being registered as the proprietor of a Mortgage No. _____ on the _____ day of 19 ____ over the whole of the land described in the schedule hereto comprised in Certificate of Title dated the ____ day of 19___ hereby applies for a Foreclosure Order in respect of the said land and in support a statutory declaration by the Secretary of the said Company is hereto attached.
If the Notice of Sale and Foreclosure has been served personally, a Statutory Declaration to that effect should be given and the form varied.
Service by post must be proved by Statutory Declaration of the person who posted the letter and a copy of the notice and the Post Office receipt for the registered letter should be exhibited. In making the Post Office receipt an exhibit, the endorsement must be on the receipt itself and not on a paper to which the receipt is attached.
Notice must also be served on every person who appears by the Register Book, to have any right, estate or interest to or in the mortgaged land subsequent to the Mortgage (this includes a Caveator) (S. 119 of the Registration of Titles Act).
When the notices prescribed in Section 120 of the Act have been published and the time appointed therein has passed, the applicant must lodge a final Declaration exhibiting the relevant section of the Newspaper. The Declaration should show that no sufficient amount has been obtained by a sale of such land to satisfy the principal and interest secured and all expenses occasioned by such sale and foreclosure proceedings; that no offer sufficient to satisfy the monies owing on the Mortgage has been made and that the Mortgagor has not up to the date of the Declaration made any tender of an amount sufficient to satisfy such moneys and that such moneys still remain owing.
The Foreclosure Order along with the duplicate Certificate of Title will be given to by the applicant for payment of Stamp Duty and Transfer Tax. The Foreclosure Order with a back sheet attached must be lodged for registration along with the fee for registration and the fee for a new Certificate of Title.