INTRODUCTION TO FORECLOSURES FOR PARALEGALS

Transcription

1 INTRODUCTION TO FORECLOSURES FOR PARALEGALS Chair Denise M. Hendrix Vickers Hendrix LLP Panel Eric Young Q.C. Witten LLP Edmonton, Alberta (Edmonton Seminar) Jim Reich Reich Nichol Denise A. Whiteley Warren Tettensor Amantea LLP (Calgary Seminar) Legal Education Society of Alberta Foreclosures for Legal Support Staff Edmonton October 6, 2009 Calgary October 8,

2 INTRODUCTION TO FORECLOSURES FOR PARALEGALS Table of Contents GENERAL SUMMARY OF FORECLOSURE LAW Introduction... 2 Law Governing Foreclosures... 2 Foreclosure Steps... 7 Checklist / Flowchart examples Types of Mortgages and Descriptions COURT ORDERS UNUSUAL CIRCUMSTANCES Estates Grow Ops Possession Bankruptcy TIPS AND TRADE SECRETS Dealings with Institutions Dealings with Private Lenders Dealings with Defendants Dealings with Land Titles Dealings with the Court House Taxation Schedule A - Excepts from the Law of Property Act, Alberta, R.S.A. 2000, c. L Schedule B Flow Chart & Checklist Schedule C Court Checklist, Ex Parte Sheet and Court Orders POWERPOINT PRESENTATION BIBLIOGRAPHY Introduction to Foreclosures for Paralegals

3 I. GENERAL SUMMARY OF FORECLOSURE LAW 1. INTRODUCTION Welcome to the world of Foreclosures. It s a fun and fascinating practice. Its never boring and it moves quickly. Time is always of the essence. The following is a brief introduction the practice and procedures of a foreclosure action. It is by no means an all encompassing guide to every aspect of a foreclosure action. Each law firm handles foreclosure matters differently. These materials are meant to give you an introduction and a basis for discussion and some assistance when you begin working in the area of foreclosures. It is not a complete precedent list. There are other LESA materials and text books available for complete precedents and detailed analysis of foreclosure law in Alberta. The LESA Alberta Foreclosure Forms are highly recommended as is the text book, Mortgage Actions in Alberta, Francis Price and Marguerite Trussler. 2. LAW GOVERNING FORECLOSURES Foreclosures are essentially governed by 2 things. The Law of Property Act, Alberta, R.S.A. 2000, c. L-7 (the Law of Property Act ) and the Alberta Rules of Court (the Rules of Court ). The Law of Property Act is the governing authority for what type of relief a Lender can seek in a foreclosure action. This varies based upon the type of mortgage granted, whether the land is farm land or not and the type of borrower. The sections of the Law of Property Act that deal with foreclosure are attached as Schedule A to your materials. The Rules of Court govern how litigation proceedings are run in the Province of Alberta. These Rules deal with how proceedings are initiated, where they are initiated, how they are served, how they can be substitutionally served or served out of the jurisdiction of Alberta, what motions are set before the court, how those motions are set, who has to be served with those motions, what judicial officer hears those types of motions, what the appeal period is for Orders granted by the Court and the rules of evidence before the Court. 2

4 The New Rules of Court are proposed to be implemented on January 1, The following is a Table of the Current Rules of Court as they apply to Foreclosure Actions and the Proposed New Rules of Court. CURRENT RULES PROPOSED RULES Number Description Part Div Number Description 6 (1) All actions commenced by Statement of Claim 6.1 Where to commence an Action 12 The court=s discretion to transfer an action to another Judicial District 13 (1) Service of the Statement of Claim - Personally on an Individual 15 (2) Service of the Statement of Claim - on a Corporation registered office How to Start an Action Determining the appropriate Judicial Centre The court=s discretion to transfer an action to another Judicial District Service of the Statement of Claim now personally or by recorded mail if receipt signed by Defendant Service on a Corporation now personally with an officer who has management of the corporation, an individual who has management of the corporation at its principal place of business, or by recorded mail to the principal place of business of business 3

5 CURRENT RULES PROPOSED RULES Number Description Part Div Number Description if receipt is signed 23 (1) Substitutional Service 3 requirements for an affidavit in Clause 23 (2) Substitutional Service Note the word Prompt is no longer required, just impractical. Still 3 requirements for an affidavit. 26 (1) Service of Subsequent Documents , Subsequent Documents Note: service by Electronic Mail must have a read receipt. Service by recorded mail is deemed delivered when signed for or 7 days after being sent. 30, 31, 31.1 Service Ex Juris Take note of Master Laycock=s Awhere=s the Beef?@ decision and Establish a connection to Alberta by providing in the affidavit a copy of title and a copy of the mortgage as this proves a claim related to land. Disclose the particulars of the default, and the grounds for service outside of Alberta. Unlike ordinary substitutional service you don=t have to state why it is like to come to the defendant s attention. 50 (1) Leave to Proceed without a personal representative for The court proposal to now only require 4