Service Overview
Focused legal support for default on a private mortgage
Default on a private mortgage happens when the borrower fails to meet the terms of the mortgage agreement, such as missing payments, failing to maintain the property, or otherwise breaching the loan conditions. When that happens, the lender may have legal remedies available to recover the debt, including power of sale or foreclosure.
Private mortgage default can create immediate pressure for both lenders and borrowers. The terms of the mortgage, the payment history, the value of the property, and the available enforcement options can all affect what strategy makes sense and how quickly the matter should move.
Reviewing the mortgage documents
The first step is usually a careful review of the mortgage agreement, commitment letter, repayment obligations, default provisions, and related security documents. This helps clarify the lender’s rights, the borrower’s obligations, and the legal remedies available under the agreement.
Notice of default and redemption period
When a borrower defaults, the lender will often issue a notice of default setting out the breach and the steps required to cure it. If the lender proceeds by way of power of sale, a notice of sale under mortgage may then be issued. In Ontario, this process typically gives the borrower a redemption period to pay the arrears, legal fees, and other required amounts before the lender moves ahead with the sale.
Power of sale and foreclosure
In Ontario, lenders dealing with a private mortgage default generally look at two primary remedies:
- Power of sale, which allows the lender to sell the property and apply the proceeds toward the debt, legal fees, and related costs
- Foreclosure, which is a court process through which the lender seeks ownership of the property itself
Power of sale is more commonly used because it is usually faster and more practical than foreclosure. Foreclosure can be lengthier and more expensive, but in some cases it may still be considered depending on the circumstances.
Sale process and distribution of proceeds
If the lender proceeds with a sale, the property must generally be marketed and sold in good faith, with the goal of obtaining fair market value. After the sale, the proceeds are typically applied to the mortgage debt, legal fees, commissions, and related expenses. If funds remain after those amounts are paid, the surplus may be returned to the borrower. If the sale proceeds are insufficient, the lender may consider a claim for the shortfall.
Foreclosure process and possession
If the lender proceeds by foreclosure, the matter will usually involve a court claim, a response from the borrower if defended, and the possibility of redemption before a final order is granted. Once a final foreclosure order is made, the borrower loses rights to the property and the lender becomes the legal owner.
After a successful power of sale or foreclosure, possession issues may still arise. If occupants refuse to leave, additional legal steps may be required before the lender can take possession of the property.
If you are dealing with a private mortgage default, our office can help you understand the legal position, the available options, and the most effective path forward.