Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 88

MORTGAGE ACTIONS

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 1. Application
and interpretation (O. 88, r. 1)

(1) This Order applies to any action (whether begun by writ or
originating summons) by a mortgagee or mortgagor or by any person having the
right to foreclose or redeem any mortgage, being an action (other than an
action to which rule 5A applies) in which there is a claim for any of the
following reliefs, namely-

   (a)  payment of moneys secured by the mortgage,

   (b)  sale of the mortgaged property,

   (c)  foreclosure,

   (d)  delivery of possession (whether before or after foreclosure or without
        foreclosure) to the mortgagee by the mortgagor or by any other person
        who is or is alleged to be in possession of the property,

   (e)  redemption,

   (f)  reconveyance of the property or its release from the security,

   (g)  delivery of possession by the mortgagee.

(2) In this Order "mortgage" (按揭) includes a legal and an equitable
mortgage and a legal and an equitable charge, and references to a mortgagor, a
mortgagee and mortgaged property shall be construed accordingly.

(3) An action to which this Order applies is referred to in this Order as a
mortgage action.

(4) These rules apply to mortgage actions subject to the following provisions
of this Order.

4. Claim for possession: failure by a defendant to acknowledge service (O. 88,
r. 4)

(1) Where in a mortgage action begun by originating summons, being an action
in which the plaintiff is the mortgagee and claims delivery of possession or
payment of moneys secured by the mortgage or both, any defendant fails to
acknowledge service of the originating summons, the following provisions of
this rule shall apply, and references in those provisions to the defendant
shall be construed as references to any such defendant. This rule shall not be
taken as affecting Order 28, rule 3, or rule 5(2), in so far as it requires
any document to be served on, or notice given to, a defendant who has
acknowledged service of the originating summons in the  action.

(2) Not less than 4 clear days before the day fixed for the first hearing of
the originating summons the plaintiff must serve on the defendant a notice of
appointment for the hearing and a copy of the affidavit in support of the
summons.

(3) Where the plaintiff claims delivery of possession there must be indorsed
on the outside fold of the copy of the affidavit served on the defendant a
notice informing the defendant that the plaintiff intends at the hearing to
apply for an order to the defendant to deliver up to the plaintiff possession
of the mortgaged property and for such other relief

(if any) claimed by the originating summons as the plaintiff intends to apply
for at the hearing.

(4) Where the hearing is adjourned, then, subject to any directions given by
the Court, the plaintiff must serve notice of the appointment for the
adjourned hearing, together with a copy of any further affidavit intended to
be used at that hearing, on the defendant not less than 2 clear days before
the day fixed for the hearing. A copy of any affidavit served under this
paragraph must be indorsed in accordance with paragraph (3).

(5) Service under paragraph (2) or (4), and the manner in which it was
effected, may be proved by a certificate signed by the plaintiff, if he sues
in person, and otherwise by his solicitor. The certificate may be indorsed on
the affidavit in support of the summons or, as the case may be, on any further
affidavit intended to be used at an adjourned hearing.

(6) A copy of any exhibit to an affidavit need not accompany the copy of the
affidavit served under paragraph (2) or (4).

(7) Where the plaintiff gives notice to the defendant under Order 3, rule 6,
of his intention to proceed, service of the notice, and the manner in which it
was effected, may be proved by a certificate signed as mentioned in paragraph
(5).

5. Action for possession or payment: evidence (O. 88, r. 5)

(1) The affidavit in support of the originating summons by which an action to
which this rule applies is begun must comply with the following provisions of
this rule. This rule applies to a mortgage action begun by originating summons
in which the plaintiff is the mortgagee and claims delivery of possession or
payment of moneys secured by the mortgage or both.

(2) The affidavit must exhibit a true copy of the mortgage and the original
mortgage must be produced at the hearing of the summons.

(3) Where the plaintiff claims delivery of possession the affidavit must show
the circumstances under which the right to possession arises and except where
the Court in any case or class of case otherwise directs, the state of the
account between the mortgagor and mortgagee with particulars of-

   (a)  the amount of the advance,

   (b)  the amount of the periodic payments required to be made,

   (c)  the amount of any interest or instalments in arrear at the date of the
        originating summons and at the date of the affidavit, and

   (d)  the amount remaining due under the mortgage.

(4) Where the plaintiff claims delivery of possession, the affidavit must give
particulars of every person who to the best of the plaintiff's knowledge is in
possession of the mortgaged property.

(5) If the mortgage creates a tenancy other than a tenancy at will between the
mortgagor and mortgagee, the affidavit must show how and when the tenancy was
determined and if by service of notice when the notice was duly served.

(6) Where the plaintiff claims payment of moneys secured by the mortgage, the
affidavit must prove that the money is due and payable and give the
particulars mentioned in paragraph (3).

(7) Where the plaintiff's claim includes a claim for interest to judgment, the
affidavit must state the amount of a day's interest.

5A. Action for the enforcement of charging order by sale (O. 88, r. 5A)

(1) This rule applies to a mortgage action to enforce a charging order by sale
of the property charged.

(2) The affidavit in support of the originating summons must-

   (a)  identify the charging sought to be enforced and the subject-matter of
        the charge;

   (b)  specify the amount in respect of which the charge was imposed and the
        balance outstanding at the date of the affidavit;

   (c)  verify, so far as is known, the debtor's title to the property
        charged;

   (d)  identify any other incumbrances on the property charged stating, so
        far as is known, the names and addresses of the incumbrancers and the
        amounts owing to them;

   (e)  set out the plaintiff's proposals as to the manner of sale of the
        property charged together with estimates of the gross price which
        would be obtained on a sale in that manner and of the costs of such
        sale;

   (f)  where the property charged consists of land in respect of which the
        plaintiff claims delivery of possession, give particulars of every
        person who to the best of the plaintiff's knowledge is in possession
        of the property charged or any part of it.

6. Action by writ: judgment in default (O. 88, r. 6)

(1) Notwithstanding anything in Order 13 or Order 19, in a mortgage action
begun by writ judgment on failure to give notice of intention to  defend or in
default of defence shall not be entered except with the leave of the Court.

(2) An application for the grant of leave under this rule must be made by
summons and the summons must, notwithstanding anything in Order 65, rule 9, be
served on the defendant.

(3) Where a summons for leave under this rule is issued, rule 4(2) to (7)
shall apply in relation to the action subject to the modification that for
references therein to the originating summons, and for the reference in
paragraph (2) to the notice of appointment, there shall be substituted
references to the summons.

(4) Where a summons for leave under this rule is issued in an action to which
rule 5 would apply had the action been begun by originating summons, the
affidavit in support of the summons must contain the information required by
that rule.

7. Foreclosure in redemption action (O. 88, r. 7)

Where foreclosure has taken place by reason of the failure of the plaintiff in
a mortgage action for redemption to redeem, the defendant in whose favour the
foreclosure has taken place may apply by motion or summons for an order for
delivery to him of possession of the mortgaged property, and the Court may
make such order thereon as it thinks fit. (Enacted 1988)