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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, there are only limited circumstances in which you can lodge a complaint with AFCA (see Chapter 2).

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.’ A 'stay' means that your eviction from your home will be placed on hold until a later date, or until the stay is lifted.

You should try to get the lender to agree to a stay. If unsuccessful you should lodge a complaint with AFCA immediately. If this is unsuccessful you will need to apply to Court.

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 lodge a complaint with AFCA immediately. AFCA has a limited post-judgement jurisdiction to help obtain a stay if there is an imminent refinance or sale, or for more time to move if you are facing personal hardship (such as temporary or serious illness or incapacitation).

Step 3

If you are not successful in AFCA, 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. See Chapter 13. 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 as 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.