79Foreclosure

79 Foreclosure S. 79(1) amended by Nos 9324 s. 6(1)(a), 9976 s. 11. (1) Whenever default is made in payment of the principal sum or interest secured by a mortgage and such default continues for six months after the due time for payment the mortgagee may make application in an appropriate approved form to the Registrar for an order for foreclosure. S. 79(2) amended by No. 9324 s. 6(1)(b) (i)–(iii). (2) The application shall be accompanied by a statutory declaration stating— (a) that such default has been made and has continued for the period aforesaid; (b) that notice to pay has been served as hereinbefore provided[[6]](#endnote-7); S. 79(2)(c) amended by No. 84/2001 s. 14. (c) that the land mortgaged has within a period of two years prior to the date of such application been offered for sale at public auction; (d) that the amount of the highest bidding at such sale was not sufficient to satisfy the moneys secured by such mortgage together with the expenses occasioned by such sale; (e) that notice in writing of the intention of the mortgagee to make an application for foreclosure has been served on the mortgagor in manner provided by this Act; and S. 79(2)(f) amended by No. 18/1989 s. 12(Sch. 1 item 111). (f) that a like notice of such intention has been so served on every person appearing from the Register to have any estate or interest in the mortgaged land subsequent to such mortgage— and by a certificate of the auctioneer by whom such land was put up for sale and such other proof of the matters stated by the applicant as the Registrar requires. (3) Upon such application the Registrar shall cause notice to be published once in each of three successive weeks in at least one newspaper published in the city of Melbourne offering such land for private sale, and shall appoint a time not less than one month from the date of the first of such advertisements upon or after which he will issue to such applicant an order for foreclosure unless in the interval a sufficient amount has been obtained by the sale of such land to satisfy the principal and interest secured and all expenses occasioned by such sale and proceedings. S. 79(4) amended by Nos 6867 s. 2(Sch. 1), 9324 s. 7(3), 18/1989 s. 12(Sch. 1 item 112). (4) Every such order for foreclosure when recorded in the Register shall have the effect of vesting in the mortgagee as registered proprietor the land mentioned in such order freed and discharged from any estate or interest of the mortgagor therein and from any mortgage charge or encumbrance except— (a) a lease easement or restrictive covenant to which the mortgagee has consented in writing or to which he is a party; or (b) a mortgage charge easement or other right that is for any reason binding upon the mortgagee. S. 80 amended by Nos 9976 s. 11, 18/1989 s. 12(Sch. 1 item 113), repealed by No. 85/1998 s. 13. No. 5842 s. 81.