Legal Advice

[OilKiller]

Originally Posted by VladtheImpaler

I assume the mortgage was insured through CMHC? I believe CMHC will pay out the bank the difference. You might want to call CMHC, explain your situation (without naming names) and find out how things work and what is going to happen...

Well, for those interested, I did call CMHC and they said that they only deal with the banks and would not come after me. If anyone, it would be the lender. CMHC said they do not take legal action against clients, even in default or foreclosure.

[OilKiller]

I just want to say a big thanks to all who have posted here and all who have contacted me through PM. I knew CP would be a wealth of knowledge. Not just hockey talk. Just great info guys...very much appreciated.

[ken0042]

Originally Posted by fredr123

The writ of enforcement can be renewed almost in perpetuity so in a lot of cases they lender will sit tight and wait for you to become gainfully employed or try to sell your property before they are able to collect. In the mean time, they might sell your judgment to a collections agency or, if the mortgage is insured by CMHC or Genworth, they could assign it to them so that they can try to collect.

Correct me if I'm wrong, but isn't there a 2 year statute of limitations on outstanding debts? I know one of the keys is that you in no way acknowledge the debt; but in this case couldn't OilKiller just let it slide, rent for 2 or 3 years and then not have to look over his shoulder again?

[fredr123]

Originally Posted by ken0042

Correct me if I'm wrong, but isn't there a 2 year statute of limitations on outstanding debts? I know one of the keys is that you in no way acknowledge the debt; but in this case couldn't OilKiller just let it slide, rent for 2 or 3 years and then not have to look over his shoulder again?

The Limitations Act says, basically, that you have two years from the date that you learn of your injury to commence a proceeding against the wrong doer. If you wait longer than two years, you could have your claim barred by operation of the limitation period.

This doesn't apply to judgments. To get a judgment, you have to commence a claim and have the court pronounce judgment (i.e., decide the case). A judgment will expire, unless renewed, after 10 years in Alberta.

[HOOT]

We just need everyone to donate $7 and OilKiller will have that $80k paid off in no time.

Having worked for a company that bought and sold homes that were going into forclosure I have a sense of what you are going through. Can't be a lot of fun for you and your family but hopefully it all works out for you. No legal advice from me but just try and keep your head up through the process and good luck!

[Kjesse]

Don't accept that $80K judgment. The bank appraisals are always low. You might still have time to get that number knocked down. By whatever means necessary retain counsel to see where things are at, and see if an appraisal will still help. If you obtain a good appraisal, you stand a very good chance of cutting that 80K deficiency judgment to 40K or even less.

There are so many foreclosures going on now that sometimes I refer to Masters' Chambers as Foreclosure World. On any given list of 30 cases on the morning docket, 2/3 of them will be foreclosures. They are dealt with very quickly and it is quite common for the Master to split the difference between the two appraisals when deciding value, if the quality of the appraisals is equal.

[OilKiller]

A lot of work was started in here, but never finished. It's actually quite a mess. I have a feeling any appraisal done other than what they did, would actually come in less, so I think what they appraised it at is about as good as it's going to get. Thanks for the advice though.

[afc wimbledon]

Originally Posted by OilKiller

A lot of work was started in here, but never finished. It's actually quite a mess. I have a feeling any appraisal done other than what they did, would actually come in less, so I think what they appraised it at is about as good as it's going to get. Thanks for the advice though.

I tend to think getting a lawyer will save you money in the long run, I also think you can/should use the threat of bankruptcy to reduce your debt.

[fredr123]

Filing your own appraisal could subject your appraiser to being cross-examined on his appraisal. Defending (or conducting) a cross-examination like that can be pretty pricey in terms of legal fees and professional fees to your appraiser (if you are the appraiser, it can also be really unpleasant to be cross-examined and challenged on your opinion).

Also keep in mind the terms of your mortgage almost invariably contain language that makes you liable for the legal fees incurred by the lender in the foreclosure action on a solicitor/client basis. Any steps you take that cause the lender to incur legal fees will result in a larger costs award against you at the end of the day. At the end of the day, knocking down the judgment by $10,000 or so might be counter productive after you factor in the increased fees and the interest that will accrue as a result of the delay those extra steps caused.

[OilKiller]

I agree to a certain extent afc wimbledon, but quite frankly we have 60 days now to gather as much money as possible so we can rent somewhere. We have very little money set aside and don't have credit avenues to hire lawyers. At the end of the day, we simply can't afford legal counsel without using up any and all the money we might have to live somewhere else when the 60 days are up. I would prefer not to live in my truck.

I appreciate what you are saying, but we couldn't afford legal counsel. We've already gone to Masters' Chambers and been heard. This is how I got the 60 days. It's unfortunately been settled pretty much where it stands now.

If they do end up coming after me, then I guess the threat of bankruptcy will be used if I have to.

[Deegee]

When you do a CMHC Mortgage you sign a Personal Liability schedule that is attached to the registered Mortgage if it is not built into the financial institution's Mortgage terms already that states that the financial institution will seek a judgement against you to cover their potential losses from selling the house.

This is a requirement from CMHC in order to payout an insurance claim filed with them by a financial institution. If there is no judgement attempt, then CMHC will not cover the financial institution's losses and the financial institution is on the hook for their losses.

I would assume that once the financial institution gets their money from CMHC that they will release the judgement against you.

At least, we usually release everything at our Credit Union once everything is cleared up and move on with life.

I hope everything works out for you.

[VladtheImpaler]

Might be a stupid question, but have you tried talking to the bank's lawyer? It's nothing personal for him/her (just a job), so they might be willing to explain to you exactly where you stand and what is going to happen. Obviously, they are adverse in interest to you, so you can't take what they say as gospel, but it's free way to find out where you stand and what your risks are.

[Ducay]

Originally Posted by VladtheImpaler

Might be a stupid question, but have you tried talking to the bank's lawyer? It's nothing personal for him/her (just a job), so they might be willing to explain to you exactly where you stand and what is going to happen. Obviously, they are adverse in interest to you, so you can't take what they say as gospel, but it's free way to find out where you stand and what your risks are.

This.

While being a non-lawyer, this sounds like the most logical next step. They're already aware of the whole situation, so its not like asking will remind them and suddenly they'll come put a lien on your underwear or garnishee your dinner.
He should be able to clarify what their usual course of action is in these cases (ie do they file w/ CMHC, or come after you for difference, or simply leave it at foreclosure).

Its not like asking can really make things any worse, amirite?