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Mortgage stress handbook

12. Getting a stay of an eviction from the Court

This chapter deals with the situation when:

  1. A court judgment has been given for the possession of your home
  2. You do not have a reasonable chance of arguing the judgment should be set aside. Judgments can be set aside where you have an arguable defence (such as circumstances described in Chapter 4) and can explain your delay. Get legal advice if you are unsure.
  3. You need more time to:
  1. Refinance your loan
  2. Sell your home
  3. Move out of home

Exclamation

After a court judgment has been granted to the lender you cannot lodge a dispute with a dispute resolution scheme on the grounds of financial hardship.

You can lodge in the Credit Ombudsman Service Ltd (if your lender is a member) to get assistance to negotiate more time to sell or more time to refinance or more time to move out of your home after judgment. If your lender is a member of the Financial Ombudsman Service you cannot lodge a dispute after judgment unless the lender agrees.

Repayment arrangements after judgment

After the lender has judgment you can still try to negotiate a repayment arrangement with the lender. If the lender agrees to a repayment arrangement make sure the arrangement is confirmed in writing!

Exclamation

If you make a repayment arrangement after the court has granted judgment, the lender can apply immediately to get possession of your home if you miss a payment even by a day or you are a few cents short.

How to get a stay of an eviction

The Court will sometimes order that an eviction be ‘stayed.’ This means that your eviction from your home will be placed on hold until a later date, or until the Court lifts the stay.

It is difficult to get a long term stay of an eviction. This process is mainly used to get a stay for a few weeks (or less commonly months).

Step 1

Try to get the lender to agree to a stay. In this situation the lender will arrange for the process of taking possession of your home to stop. The lender will usually agree to a stay if:
  • You have sold your home and you are just waiting for the settlement date to occur
  • You have approval for a refinance of your home loan and you just need time to complete that process
  • You need extra time to move out due to a medical condition or you have another good reason why you are delayed in finding alternative accommodation

Step 2

If the lender will not agree you need to apply to the Court. How you apply and what you need to do will depend on which State or Territory you live in. Chapter 13 sets out sample letters. In all cases you need to complete an affidavit. This is a statement that sets out your circumstances; you have to swear or affirm that the statement is true. A draft affidavit is set out in Chapter 13. You should also attach any evidence you have to support your stay. If possible you should seek legal advice about these documents.

As a general rule the Court will consider temporarily stopping a possession order on your property for the same reasons listed above in Step 1. As the Court can decide as it sees fit, your chances of success may vary. It is important to be ready to move out if you are unsuccessful in applying to the Court for a stay.