Mortgage Enforcement Lawyer for Private Lenders in Ontario

Enforcement services

• Default review and demand letters
• Notices of sale under the Mortgages Act
• Power of sale proceedings
• Statements of claim on the covenant and for possession
• Writs of possession and sheriff enforcement

Timelines

A notice of sale generally cannot be given until the mortgage has been in default for at least 15 days, and the sale cannot proceed until at least 35 days after notice. Accurate notices and service are critical.

Enforcement step by step

1. Default review. We review the mortgage, any amendments and the payment history to confirm the default and calculate what is owing.
2. Demand. A demand letter is sent to the borrower and any guarantors.
3. Notice of sale. Once the default has continued for at least 15 days, a notice of sale under the Mortgages Act can be served on the registered owner and everyone else entitled to notice, including subsequent encumbrancers, execution creditors and, where it is a matrimonial home, the owner's spouse.
4. Statement of claim. A claim on the personal covenant and for possession can be issued alongside the notice so the matter keeps moving.
5. Possession. If the property is not given up voluntarily, judgment and a writ of possession are obtained and enforced by the Sheriff.
6. Sale and accounting. The property is marketed and sold, and the proceeds are applied in the order the Mortgages Act requires, with any surplus paid to those entitled to it.

Getting the notice right

Power of sale proceedings depend on strict compliance. A notice that misstates the amount owing, is served on the wrong parties or is given too early can delay the sale or expose the lender to a claim. During the notice period the lender is limited in the further steps it can take, so the documents need to be right the first time.

Arrears, interest and charges

Under the Mortgages Act, a borrower can generally put the mortgage back into good standing by paying the arrears and permitted costs before the sale is completed. Lenders should also be aware of the federal Interest Act, which limits charging a higher rate of interest on arrears than on the principal. We review the mortgage terms so that the amounts claimed are supportable.

Who we act for

We act for private lenders, mortgage investment corporations and individual mortgagees holding first and subsequent mortgages on residential and commercial property across Ontario. Most enforcement steps can be handled remotely, so the property does not need to be near our Ajax office.

Before you lend

Many enforcement problems start at the lending stage. Before advancing funds, lenders should confirm title and existing encumbrances, verify the borrower's identity, obtain any spousal consent required for a matrimonial home, confirm property insurance with the lender named as loss payee, and take guarantees where appropriate. Clear mortgage terms on default, interest and costs make later enforcement faster and more predictable.

We can review a proposed private mortgage before funding and flag risks that would complicate enforcement later.