Chapter 7.1: Mortgage Law Flashcards
A mortgage is an _____________ created by a contract
Interest in land
A mortgage is not a _____________!!!
Loan (debt)
Rather, a mortgage is an _____________ and ____________ of a loan (debt)
Evidence and security
1) Loan =
2) Mortgage =
1) Debt
2) Contract = security
In BC, mortgages are registered as a ___________ against the property
Charge
Lenders who hold a mortgage as a charge have an _____________ created by a contract - until you pay it off
Interest in land
Obligation repaid = mortgage interest is _______________
Discharged
Does a mortgage need to be registered to be effective?
Nooooooo! It doesn’t
Still enforceable, just won’t show up on a title search
A mortgage is an _________ that can be sold to an _________
Asset
Investor
The borrower is also known as who?
The mortgagor
The borrow / mortgagor does what?
Obtains a loan from a lender
Grants mortgage as security for a loan
The lender is also known as who?
Mortgagee
Remember, lender has 2 ‘e’ and mortgagee also has 2 ‘e’
Lender / mortgagee
Provides a loan to borrower
Receives mortgage as security
There are 8 things that take priority over a loan, what are they?
1) builder lien act
2) Employment Standards Act
3) Local Government Act / Community Charter
4) Strata property Act
5) Workers Compensation Act
6) Claims under federal Income Tac Act
7) Canada Pension Plan, Employment insurance
8) Act, and Excise Tax Act
1 thing that take priority over a mortgage: Builder lien act
Builder lien on the property get paid before mortgages
1 thing that take priority over a mortgage: Employment Standard Act
Liens for wages owed by employer
1 thing that take priority over a mortgage: Local Government Act / Community Charter
Unpaid property taxes or other municipal fees
1 thing that take priority over a mortgage: Strata Property Act
Lien for unpaid strata fees
1 thing that take priority over a mortgage: Workers Compensation Act
Lien for unpaid fines or insurance fees
The personal covenant is what?
Is the personal contractual promise made by the mortgagor (borrower) to pay the mortgage money and interest of the mortgage
This sometimes involves another property, stocks, adding more names to your loan (aka more leverage against you to ensure you pay)
What are the 4 mortgagor covenants (aka promises)
- pay all taxes on the land and improvements
- keep premises in reasonable repair and well maintained
- pay the debt and interest as scheduled in the contract
- to insure the property to replacement value
_____________________ are stated in the contract and include examples like: repayment clause, acceleration clause, Omnibus clause, etc
Express terms
_________________ are not in the contract (aka not written) and are implied by statute or case law
Implied terms
Advances Clause (express term)
Gives the lender complete discretion in deciding whether to advance some or all the money secured by the mortgage
Not obligated or a ‘’must”
Guarantor Clause (express term)
Used to create a separate person covenant of a 3rd party (guarantor) in addition to the borrower’s personal covenant
In example: add mom or dads name to mortgage
What are the 3 implied terms (not written) in a mortgage
1) The Prohibition Against Clogging
2) Stipulations for a Collateral
Advantage
3) The Principle of Good Faith and the Duty of Honest Performance
1) The Prohibition Against Clogging
A borrower cannot be prevented by the terms of the mortgage from redeeming his property free from the conditions contained in the mortgage
Immediately makes the contract avoid
2) Stipulations for a Collateral
Advantage
A term giving the lender advantages in addition to the principal and interest payments
3) The Principle of Good Faith and the Duty of Honest Performance
Parties to a contractor under a duty to act honestly in the performance of their contractual obligations
_________________: The borrower cannot be prevented from redeeming his property once the debt is paid

Clogging
Any mortgage that clogs the owners right to redeem is VOID
___________________: borrowers can take their current mortgage to a new property and can maintain their current favourable rate
Portability clause
Movable mortgage
What is a quitclaim deed
Terminates the borrowers interest in a property in favour of the lender
For example… To basically give your keys to the bank before foreclosure
Now considered illegal in British Columbia
What is a blended rate?
If additional money is needed by the borrower, the old loan amount at its rate of interest is now added to the new loan amount at the current interest rate
So two rates become one yo 
Your first mortgage is called what?
Legal mortgage
A _________________ transfers legal Title to the property from the owner to the lender
1st mortgage / legal mortgage
Your 1st mortgage / legal mortgage has a _____________________, which means what?
Contractual right of freedom
Borrower has right to redeem title by repaying loan
Your 1st mortgage also has the ________________
Equity of redemption - remaining interest
2nd, 3rd, etc mortgages are called what?
Equitable mortgages
Anything beyond a 1st mortgage is considered an equitable mortgage despite its name
A mortgage that isn’t your first may have a name of: mortgage of equity of redemption, which means what!
Property worth $500,000, mortgage of $400,000 = $100,000 equity of redemption
A second or etc mortgage may also be called an _____________________, which is what?
Agreement for sale
Vendor agrees to sell his interest in land for the full price payable by installments upon payment of the parties in full (rent to own) 
A 2nd or etc mortgage may also be disguised as a _______________________, which is when it is listed below market price and no rent is paid, future proceeds will be shared between the seller and purchaser
Mortgage as a transfer
Duplicate certificate
2nd or etc mortgage
No document can be registered while the duplicate certificate of title is out of the particular lantern office
Present equitable mortgage
Another example of a second mortgage
An agreement to grant a mortgage in the future
Contractual clauses apply when the ____________________
Borrower defaults
Reminder: borrower = Kendra / Joe kinda people
If the borrower defaults, it is up to the ___________________________________ in the circumstances
Lender to choose the remedy it feels is the most advantageous
If the borrower defaults remedy option: acceleration
Maturity date of the loan is pushed forward and lender demands to be paid out in full immediately
- the worst remedy
- basically told you have 7 days to pay me the loan amount (say $300,000)
If the borrower defaults remedy option: omnibus
In default of payment, the lender will make the payment and the amount of the payment will be added to the loan
*can’t make your $250 monthly payment, I’ll cover it, and add $250 to your loan / mortgage
_____________________: this gives the lender complete discretion to choose the most suitable remedy
Lenders remedies
_____________________: lender makes payments to the borrower (retiree homeowner). The equity rich mortgagor can postpone selling the property
*only targets elderly people who have lived on the same land for years, which is now worth a lot
Reverse annuity mortgage (RAM)
Let me pay you to live at home…for now
_______________________: mortgage placed on the whole development and can be released from each individual lot if purchased
Interim Blanket Mortgage
*Once unit is bought, it is released from the super package of mortgages
_______________________: may be used when the purchaser cannot obtain a loan through a bank
Lender “take back” mortgage (LTB)
*for instance, if your credit score is too low or want better terms
__________________: a borrower will receive a loan and grant a mortgage to a lender for a short period of time while long-term financing is being pursued
Bridge Financing
There are 2 federal legislations that look over mortgages, what are they?
1) criminal act
2) interest act
Federal Legislation over mortgages: Criminal Code
It is an offence for a person or a corporation to enter into an agreement to receive interest at a criminal rate (over 60%)
What is the interest threshold before it is deemed illegal and criminal
Interest at 60%
Federal Legislation over mortgages: Interest Act
If the document does not mention interest, no interest can be charged
If the document requires interest to be paid, but no set amount is listed, it is automatically 5%
Section 10 of the Interest Act outlines 3 components, what are they?
- right to prepayment (pay ahead)
- does not apply to corporations
- 53 Rule: 5 years, 3 month penalty
53 Rule
A borrower has a right to prepay all outstanding debt at any time after 5 years from imitation of the mortgage with a 3-month interest penalty
Provincial Legislation related to mortgages
Business Practices and Consumer Protection Act (BPCPA)
What does Business Practices and Consumer Protection Act (BPCPA) do / allow?
The court can re-OPEN a mortgage transaction under the Consumer Protection Act if it believes the interest rate is harsh or unconscionable
The Business Practices and Consumer Protection Act (BPCPA) allows the borrower the right to _______________________
Attack the rate of interest
The one Environmental Legislation
The Environmental Management Act (EMA)
Under The Environmental Management Act (EMA) the lender is NOT liable for 3 things if a site is contaminated if:
1) participate only in financial matters
2) impose requirements on a person to inspect the site
3) May insist on environmental conditions with a security agreement
Under The Environmental Management Act (EMA), the lender IS liable if a site is contaminated if:
1) they exercise control over or impose requirements which cause a site to become contaminated
2) the lender becomes a registered owner of a contaminated property
Reminder, a mortgage is an asset that can be sold by an investor to another investor
This is _____________
Assignment!
Fuck yeah man, let’s open this door
3 people in assignment
1) obligor (promissor)
2) assignor
3) assignee (3rd party)
The obligor/ promisor
- consent is not needed for assignment to start
- cannot assign the debt (liability)
- owes money to assignor
- think of Kale and his phone bill he never paid
The Assignor
- original party to the contract
- can assign benefits under a contract
The assignee (3rd party)
- receives the rights and obligations under the contract, but wasn’t an original party to the contract
- can sue to enforce benefits
In simple, assignment of a mortgage is what?
To transfer over to another
A person can assign away benefits under a contract to a third party, without the _____________________
Consent of the borrower
*they put themselves in this situation, and if you asked them, they’d obviously say no
With assignment of a mortgage, the ________________ can sue to enforce those benefits
3rd party (assignee)
Reminder, with assignment, what cannot be assigned?
Liabilities!!
On the law / legal side, there are 2 types of assignment
1) statutory
2) equitable
Statutory requirements for Assignment include what provisions?
- must be in writing
- must be for the whole amount
- a copy / notice must be given to the promisor (aka the loser who ain’t paying his bills)
A question about fraudulent misrepresentation with the balance of assignment, just know:
Bank A is not liable to bank B
What is an assumption of a mortgage?
A mortgage that allows a buyer / borrower to assume or take over the responsibilities and liabilities under the mortgage from the seller (original borrower)
*NOTE: original borrower may remain liable
___________________: Prevents the mortgage from being assumed by anyone unacceptable to the lender
Due on Sale Clause
Allows the lender to collect on all amounts owing under the mortgage,
including prepayment penalties, upon sale of the property
____________: occurs when the original contract between the lender and the seller is replaced by a new contract between the lender and the buyer
Novation
Novation is the substitution of one contract for another, where the _______________ will be released from further liability
Original borrower
The Novation requires the __________ or __________ of ALL parties to the relevant contract
Consent or acceptance
What are the 2 purposes of foreclosure
1) to extinguish the borrower’s equitable right to redeem (no more rights behind foreclosure, lose rights)
2) to allow the lender to realize on its security (so lender can get $ back)
With foreclosure, the borrower has ______________, so the legal or contractual right to redeem is already extinguished
Defaulted
What are the 5 steps with foreclosure
1) demand letter to the borrower
2) petition
3) petition hearing
4) order NISI (redemption period)
5) order of conduct of sale (judicial sale) or order absolute
The order NISI redemption period is usually how long?
6 months
___________________: of the mortgaged property has been abandoned or contains a commercial operation, the lender may request that the court appoint a receiver
Receiver Appointment
What do receivers do?
As in, with the receiver appointment
- collect the rents
- pay the bills
- generally keep the business going
How do receivers get paid?
The receivers pay will be added to the amount outstanding under the mortgage
What is a Order NISI (nice guy)
1st action step
It sets the final redemption period, during which the respondents can redeem the mortgage by paying the amount due and owing
Usually lasts 6 months
At the first court appearance where a claim for a foreclosure is brought, a judge will generally grant an ___________
Order NISI
2 types of foreclosure
1) order of conduct of sale (judicial sale)
2) order absolute not foreclosure
Order of Conduct of Sale (Judicial Sale)
- not enough equity
- owner can still be liable - personal covenant
- most common in BC
Order Absolute of Foreclosure
- enough equity in property
- owner is no longer liable - no personal covenant
- lender becomes registered owner
- no further action can be taken against the owner
Which of the following most correctly completes the phrase: “a mortgage is…..”
A contract, evidence of a loan, and a security for a loan
must say evidence of loan
Any clause contained in a mortgage which clogs the equity of redemption is:
Void
After a borrower has given a mortgage of real property, the borrowers remaining interest as described at law as: 
The equity of redemption
After the contractual rate redeem has passed on a mortgage…
An equitable right to redeem still exists
A contract between the vendor of real estate and the purchaser where by the vendor agrees to sell his interest in that land to the purchaser for a specified price payable in installments and, upon payment of the full price and full, to transfer title to the purchaser is called
An agreement for sale
When a mortgage are grants a mortgage subsequent to a first registered mortgage, the mortgage has created what
An equitable mortgage
Which of the following contractual clauses in a mortgage does not apply where a borrower defaults
A “sales” clause
A mortgage common in the condominium development industry whereby the mortgage contains a clause that permits the mortgage registered against all of the lots to be released from each individual lot as its purchase is known as what
Interim blanket mortgage
Where a borrower believes at the amount of interest being charged is excessive, under what statute might relieve be granted
The business practises and consumer protection act
Which of the following statements regarding a due on sale clause is true
A due on sale clause allows the lender to collect on all amounts owing under the mortgage, including prepayment penalties, upon sale of the property
The process where by a mortgage lender transfers his interest in a mortgage to a third-party as known as
Assignment baby
When the original loan agreement between the lender and a seller of property is replaced by a new loan agreement between the lender and the buyer of the property for the mortgage debt, what legal concept has occurred
Novation
Describe the best answer in regards to the steps in foreclosure
Demand letter, petition, nisi, Absolute foreclosure
After an order nisi of foreclosure is granted to a petitioner and the respondent borrower fails to pay the amount due as required by the order, the petitioner may apply for
A judicial sale
Guaranteed exam question
The key purpose of foreclosure action is to
Extinguish the borrowers equitable right to redeem the property
Jordan grants Mary a mortgage over his property, Blackacre. One of the terms in the standard mortgage contract that they execute allows Mary, aside from pursuing a foreclosure, to exercise the remedies of an ordinary creditor if Jordan default. If Jordan defaults and Mary pursues this option, she will be taking action on the
Personal covenant
