How To Do Power of Sale Deal Accurately?

 

  1. The Lender may issue a “Notice of Sale” under mortgage after a given mortgage is in default for at least 15 days (may differ depending on province and city laws for Power of Sale )
  2. The Notice of Sale provides a Redemption Date of no less than 40 days. The minimum amount of time for this “step” is 45 days, including one day to issue the Notice of Sale and one day following the end of the Notice period. Lawyers who issue Notices of Sale under mortgage generally allow 40-45 days to ensure the entire process cannot be voided by an [unintentional] miscalculation of time.  If the Borrower pays the entire amount sought under the Notice of Sale prior to the deadline (the end of the Redemption Date), the Notice of Sale will be voided. If the Borrower does not pay the amount required, the Power of Sale process moves forward.
  3. If the above-mentioned period of time expires before the Borrower addresses the mortgage, the Lender may issue a Statement of Claim in the Superior Court of Justice. This serves as a formal request for possession of the property, and also for permission from the court to satisfy the debt owed by selling the property.
  4. After receiving a Statement of Claim, the Borrower is allowed 20 days to issue a Defense, or 30 days to issue a Notice of Intent to Defend.
  5. If a Defense is not filed, the Lender may obtain a Default Judgment. If a Defense is filed, the Lender generally brings a motion for Summary Judgment, since few Defenses for mortgage defaults are available. Judgments are often obtained quickly in either event.
  6. Using the Judgment, the Lender will issue a Writ of Possession to both the court and the Sheriff, who will then ensure the Borrower is evicted from the property.

If a mistake is made in any step of the process, the process must re-start from the beginning. Thus, accuracy and attention to detail are top priorities for both Lenders and their lawyers; if a Borrower wishes to return their mortgage to good standing, he/she will certainly know where they stand at all times.

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