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reese1 · May 31, 2007, 06:42 PM

I was just served with notice that my home is going into power of sale within 35 days, because of not paying my 2nd mortgage for the last 6 years, my 1st mortgage is up to date.
The problem is I thought it was paid since I never received a renewal in the last 6 years, and there was no attempt on their part to contact me. So now I'm faced with a power of sale, I asked if I could just pay off the 2nd mortgage which at the time was 21,000.00 when I first applied for it.
Their lawyer said fine but the new total is 94,000.00, out of that is 21,000.00 which was the original loan plus acurred interest and legal fees?
So my question, does the statue of limitations limit the amount of time they can hold out for the power of sale.
Is there not a Law that would force them to power sale the property 3 to 4 months after missed payments rather than 6 years and an interest rate that is un heard of.
(Ontario Canada)

reese1 · Jun 1, 2007, 07:48 PM

Originally Posted by reese1

I was just served with notice that my home is going into power of sale within 35 days, because of not paying my 2nd mortgage for the last 6 years, my 1st mortgage is upto date.
The problem is I thought it was paid since I never received a renewal in the last 6 years, and there was no attemp on their part to contact me. So now I'm faced with a power of sale, I asked if I could just pay off the 2nd mortgage which at the time was 21,000.00 when I first applied for it.
Their lawyer said fine but the new total is 94,000.00, out of that is 21,000.00 which was the origional loan plus acurred interest and legal fees?
So my question, does the statue of limitations limit the amount of time they can hold out for the power of sale.
Is there not a Law that would force them to power sale the property 3 to 4 months after missed payments rather than 6 years and an interest rate that is un heard of.
(Ontario Canada)

Come on where are all the legal experts? Is there a statue of limitations for how long they could hold out collecting interest before they are forced to power of sale you?

Fr_Chuck · Jun 1, 2007, 08:12 PM

No there is not a statue of limitation on a mortgage, and they can wait as long as they want to try to force a sale, The only issue at all I have on this, but it most be a local thing, is that where I have been a 2nd mortgage holder can not normally force a sale, and seldom do.

When the home sells the first mortgage holder always gets paid fist after the cost of the sale, And seldom, and I mean very seldom does the second mortgage holder ever get any money from these sales.
Perhaps they waited for you to pay your 1st down.

But with the assumption that normally a forelcosure sale normally ends up getting bought by the lien holder thierself ( first mortage) since they merely bid the money they are owed, and seldom is there anyone there that has that much in cash to pay more. And sometimes it sells for a lot less than even the first mortgage amount

reese1 · Jun 2, 2007, 10:46 AM

well where it stands right now, the 1st mortgage is 37,000.00 so they have ballooned the 2nd from 21000 to 90,000,
what happens when the house sells, 1st will get paid off, 2nd will get some of it, what happens if they ensure the home sells for a lot less than what its worth like use one of their friends to bid just the right amount, am I liable for what ever does not get covered, I have been hearing there are some schemes going around like that.
Can they take me to court for the rest, or can I sue them for selling the home for below market value.

excon · Jun 2, 2007, 11:07 AM

Hello reese:

Come on, dude. The banks are way ahead of you. If there's a foreclosure sale, the 1st mortgager will bid the amount of his mortgage and the 2nd will bid the amount of his. Your friend will lose out in the bidding. The 2nd mortgage holder will win, pay off the first mortgage, sell the house for what they're owed, and sue you for the difference if it's less.

excon

Dr D · Jun 2, 2007, 12:18 PM

I am not familiar with the laws in Canada, but they should be similar to those in the US. In AZ where I reside, the 2nd mortgage holder does have the right to sell the property to satisfy a loan in default. Your situation is bizarre, to say the least. I cannot imagine a lender allowing a loan to be in default for six years without doing anything. How the loan balance could go from $21K to over $90K is beyond rational calculation. First I would advise you to read your loan papers with care. Second, you should consult a good real estate attorney ASAP. I think that you are getting screwed.

reese1 · Jun 2, 2007, 12:38 PM

The 2nd mortgage was not with a bank it was with a private person, now he has sold the loan to this new person who is taking all this action.

Dr D · Jun 2, 2007, 04:14 PM

Do you still have a copy of the instrument that you signed to secure the promiory note (a Deed of Trust, a Realty Mortgage, or something else)? Was that document something that was prepared by a lawyer, or a title company, or something that you and/or the other party just made up? Was it properly executed, notarized, and recorded? Whatever it is, it might not even be valid, or the provisions might be in violation of the laws of Ontario. Someone is trying to steal your home, or extort money from you. You NEED a lawyer.

reese1 · Jun 3, 2007, 09:11 AM

I have been doing my own reserch until my lawyer gets back from vacation, on the Ontario limitations act, the own only thing that looks similar to my situation is the following insert, I was wonder if someone could translate this or if it is even applicable to my case.

Time for recovering charges and arrears of interest not to be enlarged by express trusts for raising same

Time for recovering charges and arrears of interest not to be enlarged by express trusts for raising same

24. No action shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in respect of such arrears, except within the time within which the same would be recoverable if there were not any such trust. R.S.O. 1990, c. L.15, s. 24.

Dr D · Jun 3, 2007, 11:46 AM

I did a quick Google search and failed to find a reference to an Express Trust being used as the security instrument for a mortgage note. I still think that the Express Trust is a variation of the Deed of Trust used in about 1/2 of the states in the US, in which the Trustor is the one who owes the debt, the Beneficiary is the one who receives the payments; and the Trustee is the one who has the right to sell the property at a Trutee Sale in the event of a default. My best GUESS as to what the statements you quoted means, is that the Beneficiary cannot use the Express Trust to shaft you by charging outrageous penalties and interest, and that the Beneficiary's remedies for recovery would be governed by the existing ORS cited. After you consult with your attorney, please let me know if my guess was close

reese1 · Jun 3, 2007, 03:28 PM

Another thing to note looking at the power of sale form, it states that this is the third person that has become the mortgagee, which he came into charge on the 29th day of May 2007, and I was served on the 31st of May 2 days later, has this mortgage really been in arrases to this person does he not have to inform me 15 days later or at the very least notify me that he is the new chargee on the mortgage and for me to start paying him.
Also I was never notified from the change from the original mortgage to the 2nd chargee which was done back in 2000, maybe that is why no one informed me, what I have discovered does it make any sense or even a difference ion the situation.
Are they not required to notify me when there's a change in hands.

Dr D · Jun 4, 2007, 08:05 AM

Of course, the mortgagor needs to be notified when the mortgage is sold/transferred to someone else, so that you know who to pay. On the Notice of Sale, did it give a date when the sale would take place? In the AZ D of T, the sale cannot take place any sooner than 90 days from the date of the notice. Do you have any idea of what the value of the property might be? My advice is for you to gather every piece of paper, cancelled check, etc. associated with this transaction, and see a lawyer. Make sure that it is a Real Estate lawyer.

reese1 · Jun 4, 2007, 06:22 PM

I was served on May 31, they are giving me until July 9 to come up with 21,000, plus 300 percent for a grand total of 90,000.00, If they don't hear from me by than they will take over the property and sell it.
I think this guy bought the mortgage for 15,000.00 now he wants 90,000.00 claiming that is what is owed, 21000 at 17%. Not bad for a 2 day investment.
Do I stand a chance if I counter sue, who should I sue the original person that fell to enforce the 15 day to 90 non payment. Or this new person?
The more people I talk to say its not ethnical to let a mortgage go for that long and not take action on, knowing that it will get to a point where there will be so much interest the person will walk away.
I think the home is currently worth around 130 to 140,000.00.
There's 37,000.00 owing to the 1st mortgage and now the 2nd wants 90,000.00, so some people are saying they will accept any offer, so if someone offers 90,000.00 they will accept than they will pay off the 1st mortgage and than sue me for the remainder.
Is this legal fair, I don't know but hope some one with knowledge or who knows the Ontario law could elaborate a bit.

reese1 · Jun 6, 2007, 07:27 AM

Bump

jlsmith · Jun 24, 2007, 10:44 AM

Originally Posted by reese1

I was just served with notice that my home is going into power of sale within 35 days, because of not paying my 2nd mortgage for the last 6 years, my 1st mortgage is upto date.
The problem is I thought it was paid since I never received a renewal in the last 6 years, and there was no attemp on their part to contact me. So now I'm faced with a power of sale, I asked if I could just pay off the 2nd mortgage which at the time was 21,000.00 when I first applied for it.
Their lawyer said fine but the new total is 94,000.00, out of that is 21,000.00 which was the origional loan plus acurred interest and legal fees?
So my question, does the statue of limitations limit the amount of time they can hold out for the power of sale.
Is there not a Law that would force them to power sale the property 3 to 4 months after missed payments rather than 6 years and an interest rate that is un heard of.
(Ontario Canada)

Dod any one answer this questions? If there is a default in paymentgs don't you just have to oay the past due payment?

jlsmith · Jun 24, 2007, 10:46 AM

I was just served with notice that my home is going into power of sale within 35 days, because of not paying my 2nd mortgage at the 1st of the saem month (1 pymt missed) years, my 1st mortgage is up to date. I have the missed payment now! Can I just opay the past due amount and get the mortgage reinstated?

Dr D · Jun 24, 2007, 07:46 PM

It seems like the original poster has left for parts unknown without as much as a fond adieu. For the last post, my advice would be for you to read the loan papers associated with your second mortgage. The 35 days till sale seems much too short. If your second is secured by a Deed of trust, you should be able to reinstate it by bringing the payments current, prior to a Trustee Sale.