Feb 27, 2022
THE NEW REALITY: PRIVATE MORTGAGE DEFAULTS - POWER OF SALE & FORECLOSURE - Part LXVII of a Series – Ask Me Anything Part 1…
In the previous ‘power of sale’ blog LXVI posted by me last December, 2021, I finished a 12 part series dealing with mortgage statements. This post LXVII marks my return to regular blogging after a short (2 month) hiatus. And just for fun, I thought that I would answer some of the many excellent questions that lawyers have asked me over the past year or so.
One common question centered on errors (typographic and otherwise) discovered in notices of sale. Lawyers for the mortgagor wanted to know if the notice of sale was valid if the notice of sale contained errors in the names of the mortgagor or the mortgagee, errors in the description of the mortgage in default including errors in the legal description or municipal address of the mortgaged property and even errors in the amounts expressed to be owing under the mortgage in default.
Of course, the lawyer issuing the notice of sale simply has to be extremely careful when preparing and approving notices of sale. It’s best to double and triple check the document before signing it, in order to avoid all errors. But that having been said, most errors to be found in the notice of sale will not invalidate the notice.
The law is clear, that the purpose of the notice of sale is to give the mortgagor the ability to redeem her or his mortgage that is in default before the mortgagee sells the mortgaged property under the power of sale set out in the mortgage. If the notice of sale identifies to the mortgagor which of her or his mortgages is in default and the amounts that the mortgagor must pay to fully discharge the mortgage in default, then the notice of sale has done its job and the errors complained of must not have affected this prime directive.
But errors in the amounts owing under the mortgage that are set out in the notice of sale are more problematic and will be looked at in the next post or posts. And please remember that this blog is intended for information purposes only. It is not legal advice and cannot be relied on as such. Nor is it a substitute for hiring your own legal counsel, who will be an essential member of your power of sale and mortgage default team. And lastly, this blog is just my opinion. I reserve the right to change my mind. And I reserve the right to be wrong.
Be well and stay healthy.