Mortgages: protections and remedies

The law searches for balance

And there is great reason and justice in this rule [against clogging the equity of redemption], for necessitous men* are not, truly speaking, free men, but, to answer a present exigency, will submit to any terms that the crafty may impose on them.

Vernon v Bethell [1762] EngR 18*I imagine also women

PLA

LTA

Contract

Consumer credit law

Conscience

Locating statutory obligations, rights: recall

PURPOSE

CONTEXT

TEXT

Narrowing down the statutory context and text

Focus on mortgages

Narrow focus on rights

create Rights

propy

lease

mtge

land

Rights

Act overall

Narrowing down statutory context and text - mortgages

Version, commence-ment

Purpose, objects

Structure

Geographical extent

Persons and things covered

✔✔

Search for provisions specific to

mtges

Check particular elements

of application re mtges

✔

Use the Acts’ table of contents

PLA LTA Consumer Credit Act

Repayment

Protecting the property

(Holding CT)

Insurance

Default

Exercising powers on default

Locate relevant provisionsMortgagor’s obligations

Mortgagor’s rights Provisions

Repay principal + interest

Redeem property

Preserve the mortgaged property

Refinance

Seek consent to lease Proper notice; proper conduct of the sale

Last chance to repay; right to request sale as alternative to foreclosure

How are rights balanced on default?

Right Source of right Protection

To sue on personal covenant

To enter into possession

To appoint a receiver

Power of sale

Foreclosure

Prerequisite for sale – look at the Act

Step 1

Step 2

Step 3

What if…

Failed to advertise

Sold to related entity

Sold below market value

Can the mortgagee recover under multiple remedies?

Overview

Conscience, power at heart of transaction

The law protects the mortgagor

Sources of protection

Multiple statutes, common law must be read together

Remedies

Mortgagor protections extend to exercise of remedies