When a borrower defaults on their mortgage and can no longer make payments, then the lender has a variety of legal options to maximize their recovery. Mortgage enforcement is the area of real estate law that covers these options.
The mortgage enforcement lawyers of Atlas Law Group have helped both borrowers and lenders navigate this complex process. In this short guide, we’re exploring what you can expect if you’re involved in a mortgage enforcement matter.
Power of sale
Once a borrower stops making payments on their mortgage, then the lender will begin proceedings to collect. This is usually done through a “power of sale.” A power of sale enables the lender to sell the property to a third party and recover the remaining balance. This option is commonly chosen by lenders because it doesn’t involve the court, so it's less complicated than other remedies.
In order to begin a power of sale, the lender must give the borrower written notice via registered mail. From that point, the borrower has a 35-day “redemption period” where they can bring their mortgage back in good standing. If the borrower is able to pay all back payments (including penalties and fees), then the sale will be stopped. Otherwise, the lender will continue with the power of sale.
Next, the lender usually files for a Writ of Possession. Once a Writ of Possession is issued, a sheriff will be appointed to evict the borrowers from the home. After the property is sold, any equity will go to the borrower after the remaining mortgage balance and other fees have been paid. The borrower may still be liable for the remaining balance if the lender cannot recoup the balance through the sale. Our mortgage enforcement lawyers estimate that this entire process takes about three months to complete.
Foreclosure is another remedy that the lender may use when a borrower defaults. This option allows the lender to obtain the full legal title to the property. When the lender pursues this option, the borrower will be mailed a Petition for Foreclosure. The borrower is then required to file a Response to Petition, and a court hearing will be held.
At the hearing, the court may permit the lender to proceed with the foreclosure. However, the borrower may also be granted a redemption period to pay off the full amount owed. The redemption period is typically six months for a foreclosure, but the lender may argue for a shorter period. This is why it’s essential to hire mortgage enforcement lawyers, whether you’re a borrower or lender involved in a foreclosure.
If the value of the property is less than what is owed after the foreclosure, then the lender does not have a right to pursue the borrower for the balance. However, if there are proceeds from a subsequent sale of the property, then the borrower does not have a right to this money.
Speak to our mortgage enforcement lawyers to learn more
Are you a lender or borrower involved in a mortgage enforcement matter? Our experienced legal team can help. The mortgage enforcement lawyers of Atlas Law Group have provided skilled legal representation to protect the rights of those involved in mortgage enforcement actions.
Contact us today to schedule a consultation with our mortgage enforcement lawyers. We are based in Ontario, Canada, but we serve clients around the globe.