Mar 07, 2022
THE NEW REALITY: PRIVATE MORTGAGE DEFAULTS - POWER OF SALE & FORECLOSURE - Part LXVIII of a Series – Ask Me Anything Part 2…
In the previous ‘power of sale’ blog LXVII posted last week, I began a multi-part AMA – Ask Me Anything - series. I wrote that minor typographical errors in names and legal descriptions set out in a notice of sale that do not cause confusion – and which allow the mortgagor to know which of her or his mortgages is in default – should not invalidate the notice of sale.
But errors in the amounts owing under the mortgage that are set out in the notice of sale are more problematic. Remember, the purpose of the notice of sale is for the mortgagee to let the mortgagor know which mortgage is in default and most importantly, the amount required to be paid to the mortgagee in order to fully repay all amounts owing under the mortgage.
If the mortgagee inflates the amounts expressed to be outstanding under the mortgage in default, that hinders the mortgagor’s ability to repay the mortgage. While small errors are tolerated by the courts, more significant errors can invalidate the notice of sale. Next week I'll look at the size of discrepancy in the amounts expressed to be owing that seems to offend the court's sensibilities.
One other error that absolutely invalidates the notice of sale occurs if the mortgagee (or the mortgagee’s lawyer) forgets to sign the notice. Let's not make that mistake!
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.