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What to do with Power of Sale in Ontario

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What to do with Power of Sale in Ontario

The Ontario lenders or bank will start   power of sale proceedings if the property owner is behind mortgage payments or the mortgage is due in full. There are several other reasons where the lender can exercise power of sale as well. The lender wants to recover their investment by selling the property at fair market value.

Most of the properties of power of sale listings on multiple listing services (MLS) are sold at fair market value by licensed realtors of Ontario. By no means they are considered fire sale or at bargain prices. But the lender and bank will sell power of sale properties in Ontario “ as is” and “where is” with no warrenties.

What to do when you are facing power of sale? The options are very limited but the rights of property owner and the lender are protected by Ontario mortgage act. Let us explore options for the property owner facing power of sale.

Sale by property owner

In the interim period, the property owner could continue to market the sale of the property by hiring a realtor or by themselves privately. Usually the property owner will be able to sell and save money if the property is marketed at fair market value.

Selling the property to a investor

The property owner can call investors and sell it for cash with fast closing. This works if the professional real estate investor is able to come up with the cash and close the deal really fast. Sometimes the Ontario lawyers require more time. But the property owner can assist them to gather all information required to close it swiftly.

Lenders proceedings too quickly

If the Lender or bank issued a Notice of Sale too quickly, the proceedings may be a nullity. This could arise if demands for full payment were made and the time limit in the demand had not expired. In such cases, the mortgagee would require a Court Order allowing the power of sale proceedings to take place.

Pay up Arrears and Costs

Most of the time, the Lender or bank will require payment of the entire balance outstanding. Under the Act, the property owner can simply pay up the arrears and costs. If that takes place, then the mortgage is back in good standing. The enforcement proceedings of power of sale are at an end.

Pay arrears & costs in court

In some cases, the Lender or bank will have instituted legal proceedings including an action for recovery of possession of the property. If that is the case, the property owner still has the right to pay up the arrears and costs as well as $100 for security, and the proceedings will be stayed. The accelerated principal need not be paid. If judgment is not been recovered, the action will be dismissed. 

Refinancing

This is very common recommendation by Ontario mortgage brokers and their agents. Low income/credit score/arrears/equity can be challenging to refinance. Banks and other lenders may not consider since the property owners are facing power of sale in Ontario.

Finding a partner/Joint Venture

The property owner who is going through the proceedings of power of sale in Ontario can find a joint venture partner. The joint venture partner can inject some cash for partial ownership. This strategy requires expertise and great amount of knowledge.

Request for Information

The property owner is entitled to certain information from the lender or bank including the amount of the accelerated principal. Upon receipt of the request, the lender or bank is obligated to respond within 15 days, failing which no further proceedings may be taken. If the lender or bank fails to respond without a reasonable excuse or, if the response is incomplete or incorrect, any rights that the lender or bank may have to enforce the mortgage shall be suspended until the lender or bank has complied.

Requisition an Assignment

The property owner as well as all other creditors is entitled to an assignment of the mortgage upon payment in full of the principal, interest and expenses. The right in favor of each party is separate and independent of one another. The lender or bank is obligated to reply and comply with such requests.

Technical Issues

The power of sale notice must comply with the contract and the Act. If there are any technical or legal issues they should be raised at once and rectified by the lender or bank. Courts will usually respond to such issues and deal with the matter equitably. The property owner might be awarded costs and additional time to pay.

Injunction by courts

On fair and equitable grounds the property owner will be awarded an injunction by the courts. This stops the proceedings of power of sale. One condition is the mortgage payments must be kept up to date until final disposition. This will not work if the property owner has no hope of refinancing.

Partial Payments

In many cases, the property owner will have made a partial payment. This frequently occurs without the active participation of either party. The lender or bank issues the Notice, and the mortgagor’s regular cheque is cashed. This means that the proceedings will have to start over again unless the lender or bank specifically indicates that it will accept the cheque as a “partial payment only”, without staying its proceedings.

Cost of Power of sale proceedings:

The Act requires the lender or bank to set out its costs being claimed in the power of sale proceedings. Failure to do so can result in delay, or the Court failing to award costs. These are some of the steps that might be taken by the property owner can exercise their right to protect.

Seek legal opinion in writingSeek legal opinion in writing

The property owner shall always seek the legal help. When a property owner is facing power of sale in Ontario, one of the best options is seek legal advice in writing from a competent Ontario real estate lawyer.

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Missing a mortgage payment in Canada

Missing a mortgage payment in Canada

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Missing a Mortgage Payment in Canada

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Missing a mortgage payment in Canada is a serious matter. The reason a Canadian homeowner goes into foreclosure or power of sale is important for all to understand. As a Canadian homeowner one can be prepared for such a situation as the aforementioned, and as a Canadian professional real estate investor, one can be informed as to what causes foreclosure or power of sale and how to be of service. Death, job loss, medical expenses, and divorce are a few of the most common reasons Canadians face foreclose or power of sale on a home. These factors are real and an everyday part of society.

Falling behind on your payments can trigger power of sale process in Ontario. According to the Ontario Mortgage act 'Where a mortgage by its terms confers a power of sale upon a certain default, notice of exercising the power of sale shall not be given until the default has continued for at least fifteen days, and the sale shall not be made for at least thirty-five days after the notice has been given'  R.S.O. 1990, c. M.40, s. 32.

Missing a mortgage payment in Canada and cash flow issues going on and Canadian home owners try to juggle and decide which debts to repay. It’s tough but can be worked out.

Canadian Homes: Foreclosure or Power of Sale?

Both circumstances are a legal process designed to provide the Canadian lender an option to sell the property in the event the Canadian homeowner defaults or misses several payments.

Foreclosures in Canada involve the judiciary system, making it a much slower process which can take up to 6-10 months to resolve. We see foreclosures most commonly in Nova Scotia, Saskatchewan, Manitoba, Quebec, Alberta, and British Columbia.

Power of Sale, on the other hand, is much quicker. In some cases the power of sale can happen within weeks, but you will generally have a 35 day redemption period. This means you will have 35 days after being served notice to pay all your debts (including incurred fees) and get thing back on track. Power of Sale is currently being seen frequently in Ontario, Newfoundland and Labrador, New Brunswick, and Prince Edward Island.

What can you do about missing a mortgage payment?

Option 1: Contact your lender or bank as soon as possible1

Canadian lenders would always prefer not to go through the foreclosure or power of sale process. Their goal is to safeguard their investment and assist Canadian homeowners to find a reasonable and affordable solution.

Canadian homeowners tend to be very reluctant to contact their lenders out of fear and uncertainty.

With the majority of Canadian lenders, being forced out of the home happens only when all efforts and options have been fully explored.

The Canadian mortgage lenders may be able to offer you following four options

  • Change amortization to lower monthly payments
     
  • Switching from a variable rate to a fixed mortgage to provide a consistent payment plan you can budget for without fear of any future interest rate increase
     
  • Refinancing or second mortgage
     
  • There may be an option to add missed payments to the back of your current mortgage

There is limited action the Canadian mortgage lender or bank will take in the early days besides calling you and remind you to pay in time.

Option 2: Ignore and hope it will all will disappear3

Ignoring your oustanding debt will certaintly draw the attention of Canadian lenders and banks. In the long run, cooperation works much better and saves you the cost and hassle for all parties involved.

Option 3: Consolidate all of your debts

The cheapest way to rent or borrow money is with your first mortgage on a principal residence in Canada. Before you stop paying the unsecured debt to make your payments more affordable, make sure you seek out professional advice in order to plan your financing.

Finding a solution to deal with any other debts i.e. credit cards, lines of credit, consolidate loans etc. is all the help people need to obtain a positive cash flow each month and make paying down their debts significantly easier.

One of the key things to look at if you are about to miss a mortgage payment is whether you can afford the house you live in, or whether you’re over-extended on your debt.

If you decide your house is unaffordable then there are essentially two options.

  • Obviously if there is equity in the house, selling the house is the best option.
     
  • If you are in a negative equity situation then this needs to be carefully planned and professional advice is required.
     

4Option 4: Make payments first rather than unsecured debt

The general rule if you want to keep your home is, your mortgage must be the top priority over all of your other debts. You will have many more options to deal with unsecured debt vs. secured debt.