At Elliott May our core focus is expert legal advice in commercial litigation and mortgage lending. We specialise in mortgage advance work and recovery regardless of the loan size or location of the security property.

We act for mortgage and caveat lenders in all Australian States and Territories. Our concise documents and processes allow for rapid funding and recovery of secured loans.

Mortgage and Caveat Lending Australia Wide

One of our key focus areas is mortgage advance work. We combine industry expertise with extensive practical experience. This provides our clients with an efficient, professional service that we believe is unrivalled.

Our industry demands speedy mortgage documentation. We understand this. Our unique, all-in-one mortgage document ensures quick turnaround times. This can occur within 4 hours of being instructed. We also certify loans immediately once all of our client’s pre-settlement requirements have been met. 

Our unique, all-in-one mortgage document ensures quick turnaround times.

Elliott May Composite Mortgage Documentation

The mortgage document is key when a lender pursues a defaulting borrower. At Elliott May we specialise in mortgage lending and litigation. Therefore, we regularly review mortgages prepared by others.  We often find flawed documents compiled by law firms for advances of large sums of money. These flaws limit and can negate the rights granted to the mortgagee.

The most common issue is a failure to include all the material terms that the mortgagee relies on at the enforcement stage. Another classic error is not adding a well drafted ‘interest rate’ clause, or relying on an ‘all monies’ mortgage.

All mortgages imply a set of limited rights for the mortgagee. These vary from State to State but generally include, that in an event of default, a mortgagee will:

  • have a right to possession of the mortgaged property
  • have a right to appoint a receiver of the income of the mortgaged property

However, these implied obligations do not cover many other potential issues of concern for a lender. That is why it is so important for lenders to use a properly drafted mortgage document.

Content of Good Mortgages

A good mortgage should include the following core content:

  • the right to repayment of the Principal (not just in the Loan Agreement document)
  • the right to charge interest, the applicable rates, how interest accrues and when it is payable
  • the Mortgagee’s right to possession of the security property
  • the right to recover legal and other enforcement costs on the indemnity basis
  • the right to appoint a Receiver to the security property
  • a Charging Clause
  • the right to exercise many powers on default
  • a Power of Attorney Clause

Therefore, if the mortgage you are using to secure your loans does not include these items, your funds may be exposed. 

Mortgage and Caveat Enforcement Australia Wide

At Elliott May, we keep up to date on all new developments relating to mortgage lending and enforcement.

We effectively manage all loan recovery matters. From straight forward cases to complex ones that may include:

  • liquidators
  • receivers
  • priority disputes
  • claims of unconscionability
  • mortgages over part shares
  • marshalling disputes
  • cross-claims

We are often instructed to take over enforcement cases other solicitors have started but are unable to finalise or suitably settle. This may be due to the complexity of the case or not using appropriate documentation when initially setting the loan.

 

Solutions. Not just advice

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