– INTEREST IN LAND – MORTGAGES

Definition

A mortgage is a conveyance or other disposition of an interest in property designed to secure the payment of money or discharge of some other obligation.

from the Law of Property Act 1925 Interpretation Section http://www.legislation.gov.uk/ukpga/Geo5/15-16/20/section/205

(xvi)“Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage and “legal mortgagee” has a corresponding meaning; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; “mortgagee” includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and “mortgagee in possession” is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; and “right of redemption” includes an option to repurchase only if the option in effect creates a right of redemption;

It is the mortgagor (the owner of the property) who grants the mortgage of property as security for the loan by the mortgagee (the lender of the money). If the loan is not repaid or the obligation is not discharged then the security is sold or similarly dealt with by the mortgagee to satisfy the debt or obligation.

A mortgage may be either legal or equitable.

Creation of Legal Mortgages

Charge by Deed by way of Legal Mortgage under the Law of Property Act 1925 S. 87.

This is known as the legal charge. They must be created by deed.

Creation of Equitable Mortgages

A secured payment that is not by deed may amount to an equitable mortgage.

1. Contract to Create a Mortgage

Equity regards as done that which ought to have been done. A contract for a mortgage is therefore said to be as good as a mortgage. However such an equitable mortgage will only be effective if specific performance of the contract may be granted, which is an equitable remedy and is therefore discretionary. Also an agreement for a mortgage being equitable is, as with all equitable interests void against a purchaser for value of a legal estate without notice; however this should no longer be a problem since if the land is unregistered a contract for a lease may be registered as a C(iv) Land Charge or if the land is registered it may be entered on the register by notice as minor interests.

A contract for a mortgage made after 27th September 1989 must comply with S.2 Law of Property (Miscellaneous Provisions) Act 1989.

2. Informal Mortgage by Deposit of Deeds

Equity is prepared to recognise any action which clearly shows an intention to create a mortgage including the mortgagor depositing the title deeds or land certificate with the mortgagee in return for a loan. Russel v Russel (1783) 1 Bro CC 269; S.13 LPA 1925.

3. Equitable Charge

This arises when a chargee appropriates specific property to the payment of a specific sum but a legal charge has not been created e.g. because the charge is evidenced by letter and not by a deed. Matthews v Goodday (1861) 31 LJ Ch 282.

4. Equitable Mortgage of an Equitable Interest

A mortgagee of an equitable interest such as a life interest under a settlement must of itself be equitable. These have been unaffected by the provisions of the Law of Property Act and therefore they are effected by the transfer of the entire interest to the mortgagee on an undertaking to reconvey the interest on the repayment of the loan. Note that the transaction must be in writing to transfer the interest to the mortgagee in order to comply with S.53 of the LPA 1925.

Registration of Mortgages

Unregistered Land – the following types of mortgage are registerable under the Land Charges Act 1972:

a) Puisne Mortgages (a legal mortgage not protected by deposit of title deeds) as a Class C(I).

b) A Contract for a Legal Mortgage i.e. equitable mortgage as a Class C(iv).

Registered Land –

All Mortgages Legal and Equitable Mortgages must be registered against the title charged

Rights of the Mortgagor

1. Right of Redemption

The right to redemption is the right to repay the mortgage and to have in return the property released from the charge upon it i.e. the discharge of the mortgage.

At common law there was a right to redeem on one day alone and if the mortgagor did not pay on that date he or she was liable to forfeit the property to the mortgagee and also be liable in contract for the debt.

Equity however recognised a general right of redemption since the only purpose of the mortgage was as security for the loan. therefore the mortgagee could not object if the mortgagor redeemed.

The right to redeem the mortgage is said to be inviolable, i.e. “once a mortgage always a mortgage”. Two aspects may be considered:

a) The Right To Redeem Must Not Be Excluded

Therefore covenants that provide for the property becoming the mortgagee’s absolutely on the happening of a certain event are void. So too are options in a mortgage enabling the mortgagee to purchase the mortgaged property. Samuel v Jarrah Timber & Wood PavingCorpn [1903] AC 323 cf. Reeve v Lisle [1902] AC 461.

b) The Right To Redeem May Be Postponed

The right of redemption may be postponed. It is arguable that it is unreasonable to prevent a mortgagor from redeeming the mortgage before a certain time however in Knightsbridge Estates Trust Ltd v Byrne [1939] Ch 441 the Court of Appeal held that it was not a question of reasonableness but of contractual principles whereby a party to an agreement freely entered into a term to prolong the mortgage until a certain date.

However it should be noted that postponement of redemption will not be permitted where it is of such a nature that the right to redemption is in fact illusory. Such a provision will be void. Fairclough v Swan Brewery Co Ltd [1912] AC 565.

2. Collateral Terms of the Mortgage

The mortgage may contain terms which give the mortgagee certain advantages in addition to the return of the loan with interest. For example a brewery may lend money to a publican or an oil company to a garage owner by way of mortgage and in addition to the repayment of the loan the mortgagor also agrees to purchase all his or her supplies of beer and petrol from the brewery and oil company respectively. Such agreements are not void provided they:

a) are not unfair or unconscionable;

b) do not unfairly restrict redemption;

c) are not in restraint of trade;

d) are not extortionate under the Consumer Credit Act 1974.

a) Unfair or Unconscionable terms

Whether a term is unconscionable and unfair is a question of fact where one off the parties has acted in a morally reprehensible manner and may be void not because of its association with a mortgage but because public policy will not allow a contract to be used as an engine of oppression. E.g. Cityland and Property (Holdings) Ltd v Dabrah [1968] Ch 166; [1967] 2 All ER 639 However in Multiservice Bookbinding Ltd v Marden[1979] Ch 84; [1978] 2 All ER 489

b) Unfair Restriction of Redemption

Most of these cases concern an advantage that is obtained after redemption. In Biggs v Hoddinott [1898] 2 Ch 307 the collateral term was designed to terminate with redemption and the court held it valid.

However in both Noakes & Co Ltd v Rice [1902] AC 24 and Bradley v Carritt [1903] AC 253 the advantage was intended to continue after redemption and the House of Lords held the terms to be void.

Nevertheless in Kregliner v New Patagonia Meat and Cold Storage Co Ltd [1914] AC 25 it was held that although the advantage continued after the date of redemption it did not restrict the right of the mortgagor to redeem, indeed the collateral advantage was seen as being a preliminary and separable condition of the loan. The reason for the House of Lords in differentiating between this case and the former cases was also due to the particular facts Noakes v Rice in particular would have meant that the publican would have been tied to the brewery(the mortgagee) for the 26 year duration of the lease and long after the mortgage had been redeemed. In Kregliner v New Patagonia the loan was secured by a floating charge, analogous to a mortgage but secured upon assets. The agreement was that the mortgagor would sell its goods for a term of 5 years from the date of the loan to the mortgagees provided they paid the full market price. The floating charge could stand alone from the agreement to sell the goods each being potentially a fair bargain.

Cf Re Petrol Filling Station, Vauxhall Bridge Road, London (1968) 20 P & CR 1

c) Restraint of Trade

Mortgages are subject to the common law rules relating to restraint of trade. These state that a term in a contract that is unreasonably in restraint of trade will on the grounds of public policy be void, provided it is severable, if it were not the entire contract would be void.

In respect of mortgages the doctrine of restraint of trade has been applied to clauses which require the mortgagor to be tied to the mortgagee in return for the loan. However if the term is not in restraint of trade then it will remain valid irrespective of any link it may have with the mortgage. It is not its link with the mortgage that makes it void.

Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269; [1967] 1 All ER 699 & Alec Lobb (Garages) Ltd v Total Oil Great Britain Ltd[1985] 1 WLR 173; [1985] 1 All ER 303

3. Extortionate Credit Bargains

Ss. 137 – 140 of the Consumer Credit Act 1974 gives power to the court to re-open any credit bargain it considers to be “grossly exorbitant” or “otherwise contravenes ordinary principles of fair dealing”. This applies to all mortgages provided the mortgagor is an individual.

In deciding whether a bargain is extortionate the court is required to take into account:

a) the interest rates when the bargain was made;

b) the age, experience, health and business capacity of the debtor;

c) the creditor’s relationship to the debtor and the degree of risk accepted by the creditor;

e) any other considerations.

4. Economic Duress and Unfair Advantage

Doctrine of Undue Influence – this doctrine has given mortgagees, guarantors and sureties and those who agree to postpone their interest in property in favour of a mortgagor some measure of protection. In Barclays Bank v O’Brien [1994] 1 AC 180 a mortgage was granted to a husband in respect of a property jointly owned by a the husband and wife. The mortgage was to benefit the husband’s business but did not benefit the wife although she gave her consent to the mortgage. The husband defaulted and the mortgagee sought possession of the property. The wife claimed she should be able to retain her share in the property as she had given her consent as a result of the undue influence of her husband of which the mortgagee had constructive notice taking into account the nature and circumstances of the mortgage. Therefore the mortgagee should have ensured that she received independent advice. The House of Lords held that when persons who are in a non-commercial relationship (e.g., married or cohabitees) jointly own property and one of the owners obtains a mortgage (e.g. for business affairs) from which the other does not directly benefit the mortgagee is under an obligation to ensure that that other obtains independent advice and understands the nature and effect of the mortgage transaction.

In Royal Bank of Scotland v Etridge (No. 2) [1998] 4 All ER 705 CA the House of Lords gave guidance on how mortgagees can ensue the parties are properly advised.

The mortgagee can protect itself by ensuring that the other owner has been advised by a solicitor. It should communicate directly with the party to ensure that a solicitor of his or her choosing advises. It should obtain the solicitor’s written confirmation that it has given full advice. The solicitor can be the same one for both owners except where the case has a special feature or where the solicitor decides there is a conflict of interest.

The solicitor must provide the co-owner with the full facts of the case (e.g. the amount that can be borrowed, potential consequences and extent of risks) in a face-to-face interview and only if she is happy to go ahead without further negotiations with the lender should the matter proceed. The solicitor does not need to investigate all relevant factors and establish conclusively that there is no undue influence.

Lord Bingham summed up: “The law must afford both parties (that is, the wife and the lender) a measure of protection. It cannot prescribe a code, which will be proof against error, misunderstanding or mishap. But it can indicate minimum requirements, which, if met, will reduce the risk of error, misunderstanding or mishap to an acceptable level. The paramount need in this important field is that these minimum requirements should be clear, simple and practically operable.”

The following are two recent cases that show the effect of the application of the above cases.

First National Bank plc v Achampong & others Court of Appeal (Civil Division)

E and N, who were husband and wife, mortgaged their jointly owned property to secure O’s business liabilities. O was E’s cousin and was to make the re-payments. O defaulted on the mortgage re-payments. E alleged undue influence by N. She said that the bank should have been put on inquiry, as she was to receive no benefit and ensured that she received advice from a solicitor, which she had not. The mortgagee argued that if E’s interest could not be charged with the mortgage then the mortgage should not be set aside but instead N’s interest should be severed and subject to the mortgage.

Held: Given that there was no commercial relationship between E and N and O the mortgagee had constructive notice of undue influence. The mortgagee had not ensured that E had been properly advised and therefore the legal charge was ineffective against E. However it was held that section 63 of the Law of Property Act 1925 applied and the charge was effective against N’s interest in the joint tenancy, which was severed by his actions. The court ordered a sale under s 14 Trusts of Land and Appointment of Trustees Act 1996.

Charter v Mortgage Agency Service [2003] EWCA Civ 490

C and her son jointly borrowed £34,228.09 from M by way of mortgage secured on C’s house for the son’s business and the property was transferred into their joint names. The mortgage went to pay off an existing mortgage on the property and the son received a balance of £23,949.36 for his business. Son defaulted on the mortgage repayments. Possession proceedings commenced and C paid off arrears and the property was transferred back to C’s name alone. C defaulted on the mortgage, possession proceedings commenced and C defended by arguing that M had been put on inquiry and had not taken adequate steps to ensure that she independently advised.

Held: C had to show that she was either unduly influenced or induced to enter the mortgage by a misrepresentation. The court found that C had trusted the son and that M had been put on inquiry but had failed to ensure that C had received advice. The mortgage was most unsuitable as C was 61 and the term was 25 years. However there was no evidence of either undue influence or misrepresentation and therefore judgement for £63,501 was awarded against C.

 

Rights of the Mortgagee of a Legal Mortgage

There are five remedies available to a legal mortgagee. They may all be pursued concurrently as soon as the mortgagor is in default e.g. the mortgagee may at one and the same time may sue for repayment in debt and begin foreclosure proceedings. The may also be cumulative e.g. the mortgagee may exercise his or her power of sale and if the purchase price is less than the mortgage debt may then sue the mortgagor for the balance. Note that foreclosure however puts and end to all other remedies.

1. Suing Under the Covenant to Repay

A mortgage deed contains an express covenant whereby the mortgagor covenants to repay the principal sum on a definite date known as the “redemption date” together with all interest. When that date has passed the mortgagee can sue on the covenant for the recovery of the principal sum and interest that may be in arrear.

Note that in most modern mortgages the principal sum is to be repaid by a redemption date that is fixed as being six months from the date of the mortgage deed. The mortgagee therefore cannot enforce any of the remedies until that date has passed and the mortgagor is in default. However modern mortgages also provide that the repayment of the principal sum and interest shall be by instalments over a period of time such as 10 or 20 years. Therefore the mortgagor must ensure that he or she maintains the repayment instalments after the redemption date has passed for failure to do so would mean that the mortgagee may enforce the mortgage. But note that a mortgagee can sue before the redemption date on the mortgagor’s personal covenant to repay Bolton v Buchanan [1891] 1 QB 278

2. Entry into Possession

A legal mortgagee has the right to enter into possession as soon as the mortgage is made or “before the ink is dry on the mortgage”- Four Maids Ltd v Dudley Marshall (Properties) Ltd – unless he or she has contracted out of the right either expressly or by implication, although the court is reluctant to imply a term contracting out of the right Western Bank Ltd v Schindler. The right to possession is based on the position of the mortgagee as tenant See Ss 85 & 86 LPA 1925.

The reason for not entering into possession is for two reasons:

1. There is usually a covenant that states that the mortgagee will not take possession unless there is a breach of the agreement.

2. Equity requires the mortgagee not to obtain any advantage out of the mortgage beyond the payment of principle, interest and costs. The mortgagee is made to account for what has actually been received and, if the mortgagee does take possession, for that which might have been received but for the mortgagee’s “wilful default or neglect”. The reference here to “wilful default or neglect” includes the situation where the mortgagee allows a property to remain vacant when it may have been let. The money that might have been obtained for such let will be deducted from the total debt owed to the mortgagee. e.g. White v City of London Brewery Co(1889) 42Ch D 237.

The mortgagee however will take possession if there is a breach of the mortgage particularly for a failure to make repayments. The mortgagee will then be seeking to sell the property in order to realise the security i.e. sell the property. The mortgagee will normally wish to enter into possession before selling in order that the property may be sold with vacant possession.

The Mortgagee’s right to enter the property is limited in the following ways:

a) Statutory –

The mortgagee will normally seek possession by taking proceedings in the Chancery Division where the Court has no jurisdiction to decline the order or adjourn the hearing where possession is sought of a property other than a dwelling house. However a short adjournment may be allowed where it appears a reasonable proposition that the mortgagor will be able to pay the sums outstanding.

Where the mortgagee brings an action for possession of a dwelling house the court has wide discretionary powers under S. 36 of the Administration Of Justice Act 1970 & S. 8 of the Administration of Justice Act 1973 if the court is satisfied that the mortgagor is likely to be able within a reasonable time to be able to pay any sums due under the mortgage or to remedy some other default. This relief may be given in the absence of arrears or default and in respect of all types of mortgage. S. 8 of the Administration of Justice Act 1973 states that even though the mortgage deed may require the whole of the principal sum to be repaid on default following the redemption date the court may only order that the instalments in arrear be paid to discharge the mortgagor’s liability at that time and so avoid enforcement proceedings. Endowment Mortgages are covered by AJA 1973 – Bank of Scotland v Grimes[1985] 3 WLR 294

b) Equity – It was submitted in Quennell v Maltby[1979] 1 WLR 318; [1979] 1 All ER 568 by Lord Denning MR that equity had a wide discretion to restrain any unjust use to the right to possession:

“The objective is plain. it was not to enforce the security or to obtain repayment or anything of the kind. It was in order to get possession of the house and overcome the protection of the Rent Acts. Equity can step in so as to prevent a mortgagee or a transferee from him from getting possession of the house contrary to the justice of the case. A mortgagee will be restricted from getting possession except when it is sought bona fide and reasonably for enforcing the security and then only subject to such conditions as the court thinks fit to impose.”

It is suggested that this principle is expressed to widely since if it were in this form there would be no need for any statutory provisions.

3. Sale

S101 Law of Property Act 1925

The power of sale will arise if the mortgage:

– has been made by deed and the redemption date has passed and

– if the mortgagor is in default (including the failure to pay an instalment) and

– there is no expression of contrary intention which would prevent the power of sale being exercised.

Note that the above conditions are cumulative and all three must exist before the power of sale arises.

S. 103 Law of property Act 1925

Although the power of sale arises if the conditions under s 101 apply nevertheless it does not become exercisable until one of the following occurs:

1. Written Notice of the mortgage money has been served on the mortgagor and default has been made in payment of the mortgage money for three months after such service. If there are more mortgages than one the notice should also be served on the latter mortgagees.

2. Some interest under the mortgage is in arrear and unpaid for two months after becoming due.

3. There has been some breach of a provision contained in the mortgage deed e.g. if the mortgagor has broken a covenant in respect of repair.

The power of sale is exercised when the mortgagee enters into a contract to sell (not the conveyance). Lord Waring v London and Manchester Assurance Co Ltd [1935] Ch 310; [1934] All ER Rep 642 The conveyance frees the property from all rights over which the mortgage has priority – S.104 (1)

In respect of fee simple property a mortgagee is given express statutory power to vest the fee simple in the purchaser on a sale Ss 88 & 113 LPA 1925.

In respect of leasehold property a mortgagee acquires the mortgagor’s leasehold interest and assigns it to a purchaser who takes on the liabilities of the covenants under the lease.

Therefore there is no difficulty in transferring to a purchaser a valid legal title to the whole interest vested in the mortgagor. However if a purchaser buys from a second mortgagee then he or he will take subject to the prior first mortgage. A purchaser will therefore normally require the purchase money to be used to discharge all mortgages. A purchaser is only concerned to see that the power of sale has arisen i.e. that the date of redemption has passed; he or she need not be satisfied that the power of sale has become exercisable or that it has been properly exercised.

The money received form a purchaser will be held by the mortgagee after any prior mortgages have been paid off on trust:

1. To pay all expenses incidental to the sale;

2. To pay the mortgage principal, interest and costs;

3. To pay the surplus to “persons entitled to the mortgage property” which may be the mortgagor or subsequent mortgagees that are prior to the mortgagor.

A mortgagee who exercises his power of sale is not in any other respect a trustee for the mortgagor. Cuckmere Brick Co Ltd v Mutual Finance Ltd (1971) Ch 949 A mortgagee may therefore sell whenever he or she wishes.

However in exercising a power of sale a mortgagee owes a duty of care to the mortgagor to:

a) act in good faith;

b) take reasonable care to obtain the true market value of the mortgaged property at the date on

which the mortgagee decides to sell, Tse Kwong Lam v Wong Chit Sen [1983] 3 All ER 54; [1983] 1 WLR 1349.

c) ensure that the sale is genuine. A mortgagee cannot sell to him or herself.

Corbett & anr v Halifax plc [2002] EWCA Civ 1849 [2003] 1 WLR 964 Court of Appeal (Civil Division) The mortgagor had defaulted and the mortgagee had obtained an order for possession and sale. The mortgagee inadvertently sold the property to one of its employees in breach of mortgagee’s terms. Unbeknown to the employee the sale was also at an undervalue in breach of the mortgagee’s duty to sell at the best price that could be reasonably obtained. The mortgagee applied to have the sale set aside. Held: The court would not set aside the sale (even though it was at an undervalue) unless there was some impropriety or bad faith on the part of the mortgagee in the exercise of its power that was known to the purchaser. There was no impropriety in relation to the mortgagee’s conduct, as the mortgagee did not know the purchaser’s deception. The purchaser’s deception related only to the mortgagee not to the mortgagor, i.e. the purchaser had acted in good faith and did not know the sale was at an undervalue. The purchaser was therefore able to claim the protection of s104 (2) Law of Property Act 1925, which required good faith on the sale of a property by a mortgagee however the good faith that was relevant for that purpose was that of purchaser and not the mortgagee. The mortgagor’s remedy against the mortgagee for a sale at an undervalue was therefore in damages.

4. Appointment of A Receiver

There are cases where it is essential that the mortgagee should be able to collect the rents in order to pay the interest before they are paid to the mortgagor. For example the mortgaged property may have been leased by the mortgagor and therefore there will be an income from the property. In such cases it will be appropriate to appoint a receiver to manage the income. Such receiver may be appointed whether the mortgagor is in default or not e.g. by the mortgage deed. There is a statutory power to appoint a receiver in the case of a mortgage created by deed S.101 LPA 1925.

The advantage of such an appointment for the mortgagee over taking possession is that the receiver is deemed to be the agent of the mortgagor and that the sole responsibility for his or her acts rests with the mortgagor. The receiver is bound to apply any money received in the following order:

1. To discharge rents, taxes, rates and outgoings;

2. In making payments that rank before the mortgage;

3. In paying the receiver’s own commission;

4. To pay for insurance and repairs;

5. To pay the mortgage interest;

6. To discharge the principal of the mortgage.

Any residue that remains must be paid to the mortgagor. S. 109 LPA 1925

5. Foreclosure

Foreclosure is judicial procedure by which the mortgagee acquires the land free from the mortgagor’s equity of redemption. once the redemption date has passed then on default the mortgagee may apply to the court for payment of the money due or foreclosure.

If a mortgagor does not pay then foreclosure nisi is ordered whereby the mortgagor loses his or her property unless he or she pays on or before a certain date, usually six months. If the mortgagor fails to pay then the mortgagee may obtain a foreclosure absolute.

The effect of the foreclosure order is to vest the fee simple absolute in the mortgagee. A foreclosure order does not effect the rights of prior mortgagees and therefore a second mortgagee who would obtain a foreclosure order has the fee simple vested in him or her subject to the first mortgage. However subsequent mortgagees will be foreclosed and will lose their security i.e. “foreclosure down”. Therefore subsequent mortgagees must be given the opportunity to redeem the mortgage following the foreclosure nisi.

The court has statutory jurisdiction in a foreclosure action to order sale instead of a foreclosure.

A foreclosure may be re-opened and the equity of redemption revived by reason of the court’s discretion if such relief appears in the special circumstances of the case to be due to the mortgagor. In Campbell v Holyland(1877) 7 Ch D 166 the following factors were said to influence the court in ordering the reopening of foreclosure:

a) the promptness of the mortgagor’s application;

b) the failure to redeem being due to an accident;

c) the difference between the value of the property and the loan;

d) any special value that the property had to the parties.

Rights of the Mortgagee of a Equitable Mortgage

 

1. Suing Under the Covenant to Repay

An equitable mortgagee can sue the mortgagor personally for recovery of the money lent.

2. Entry into Possession

An equitable mortgagee is not entitled to enter into possession of the land unless the right to do so has been expressly reserved or the court makes an order to that effect.

3. Sale

The general rule is that foreclosure and not sale is the proper remedy for an equitable mortgagee. The statutory power of sale is only exercisable if the mortgage is made by deed and therefore would only be permissible where the contract to create a legal mortgage provided for the legal mortgage to be created by deed or where the deposit of title deeds is evidenced by a memorandum by deed. Alternatively the court may order a sale.

4. Appointment of a Receiver

If an equitable mortgage is created by deed then the statutory power of appointing a receiver is available to the mortgagee but in the absence of a deed the appointment must be made by the court.

5. Foreclosure

This applies where a deposit of title deeds has been accompanied by an agreement with a borrower to give a legal mortgage if required to do so or where there has been a deposit of title deeds without a memorandum.

– An equitable charge

An equitable charge which involves no transfer of a legal or equitable interest to the lender but entitles him to have the debt discharged out of the land only gives the remedies of Sale and Appointment of a receiver under the direction of the court. There is no right To Take Possession or to Foreclose.