Specific Mortgage Enforcement Issues
Date:
March 1 2004
This paper will address the following five mortgage enforcement topics and issues:
1. Do you have a mortgage?
(a) equitable mortgages
(b) General Security Agreements covering real property
(c) sale and option transactions which in substance are a disguised mortgage
2. Using the remedy of rectification to fix an error in the mortgage document
3. The ordering and timing of remedies:
(a) possession, power of sale and deficiency claims - the defence of improvident realization and failure to mitigate
(b) limitation period considerations
4. Injunctive relief to restrain a power of sale
5. Receivers and managers:
(a) private and court appointed traditional receiver and manager
(b) interim receivers appointed under section 47 of the Bankruptcy and Insolvency Act
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