Foreclosure - Countries Other Than The USA

Countries Other Than The USA

• Australia and New Zealand: Foreclosures are generally referred to as Mortgagee sales or Mortgagee auctions. In those cases, the bank or lender ("Mortgagee") sells under the terms of the mortgage. In both of these countries statutory reform has altered the manner in which real property dealings are conducted. What is termed a "mortgage" is a charge that is registered against the title of the property. Since in both countries, the Torrens title system of land registration is used, being registered as proprietor or as a mortgagee creates an indefeasible interest (unless the acquisition of the registration was by land transfer fraud). The mortgagee therefore never holds any title documents, and there is a statutory process for initiating and conducting a mortgagee sale in the event that the mortgagor defaults. In New Zealand, the land title database is now electronic so there are no paper "title documents".
• United Kingdom: Foreclosure is a little used remedy which vests the property in the mortgagee with the mortgagor having no right to any surplus from the sale. Because this remedy can be harsh, courts almost never allow it. Instead, they usually grant an order for possession and an order for sale, which mitigates some of the harshness of the repossession by allowing the sale.
• Ireland: Foreclosure has been abolished by the Land and Conveyancing Reform Act 2009 but Chapter 4 of Part 9 of the National Asset Management Agency Act 2009 provides for vesting orders that are equivalent to foreclosure but may only be used by NAMA.
• Switzerland: Foreclosure takes place as a form of debt enforcement proceedings under Swiss insolvency law.
• People's Republic of China: Foreclosure takes place as a form of debt enforcement proceedings under strict judicial foreclosure, which is only allowed by law of guarantee and law of property right.
• Philippines: There are two modes of foreclosure in the Philippines. A mortgagee may foreclose either judicially or extrajudicially, as governed by Rule 68 of the 1997 Revised Rules of Civil Procedure and Act. No. 3135, respectively. A judicial foreclosure is done by filing a complaint in the Regional Trial Court of the place where the property is located. The judge renders judgment, ordering the mortgagor to pay the debt within a period of 90–120 days. If the debt is not paid within the said period, a foreclosure sale satisfies the judgment. In an extrajudicial foreclosure, the mortgagee need not initiate an action in court but may simply file an application before the Clerk of Court to secure attendance of the Sheriff who conducts the public sale. This is done pursuant to a power of sale. Note that these two modes specifically apply to real estate mortgages. Foreclosure of chattel mortgages (mortgage of movable property) are governed by Sec. 14 of Act No. 1506, which gives the mortgagee the right to sell the chattel at a public sale. It has also been held that as regards chattel mortgages, the law does not prohibit that the foreclosure sale be done privately if it is agreed upon by the parties.
• South Africa: For a developing country, there is a high rate of foreclosures in South Africa because of the privatisation of housing delivery. One of the biggest opponents of foreclosures is the Western Cape Anti-Eviction Campaign which sees foreclosures as unconstitutional and a particular burden on vulnerable poor populations.
• Spain: Unlike in the United States, where a foreclosure means the end of the line, the foreclosure hearing in Spain is just the beginning of the homeowner’s troubles. They will have to work for the bank for many years and will be unable to ever own anything—even a car. Spanish mortgage holders are responsible for the full amount of the loan to the bank in addition to penalty interest charges, and court fees. Much of this can be attributed to Spain having the highest unemployment rate in the “euro zone.” Unlike in the US, bankruptcy is not an adequate solution since mortgage debt is specifically excluded. Unlike other European countries, you cannot go to the courts for any sort of debt relief. There has been much contention over these policies in the Spanish Parliament but the government is convinced that keeping these policies will prevent Spanish banks from ever experiencing something similar to the US mayhem.