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Can the bank sell the matrimonial home by power o sale when

the other spouse put a...
Can the bank sell the matrimonial home by power o sale when the other spouse put a CPl on title?
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Answered in 1 hour by:
8/27/2013
Debra
Debra, Lawyer
Category: Canada Law
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Hello again,

I believe the bank would need to get an order from the court lifting the CPL.

The CPL doesn't necessarily freeze title the way a lien does.

It really asks as a caution by alerting anyone who is going to buy the house that there is litigation that is ongoing about the house.

But no one will buy the house with the CPL on it so the bank would bring an application to Court at the same time it is addressing the power of sale to have the CPL vacated.

Let me know if you need any further clarification.
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Customer reply replied 4 years ago


If the bank brought such an application how would that relate to the existing family law proceeding and the other spouse's wish to have exclusive possession and/or buy out the other spouse?

If the bank is in a position to go for a power of sale, the house is going to be lost and none of the family law issues will matter any more.
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Customer reply replied 4 years ago


How could the spouse wanting exclusive possession and/or to buy out the other spouse prevent or hold off the bank from selling under power of sale?

The bank is not bound by family law issues or even the law with respect to any of this as the family law issues are between the spouses.

So if one spouse wants to buy the other out the spouse will have to make a deal with the bank which will likely mean at least putting the mortgage back into good standing.
Debra
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Customer reply replied 4 years ago


How can the one spouse make a deal with the bank to bring the mortgage into good standing if the bank won't discuss anything about the mortgage with anyone but the mortgagor without authorization, which the mortgagor does not want to provide? Does the spouse have to wait for the bank to bring the matter to court to offer to pay something toward bringing the mortgage back into good standing? Will the bank likely accept installment payments to do so and get costs paid as well? Will the spouse even receive notice of the bank's intention to bring an action for power of sale due to having an interest in the house but not the mortgage? If so, why wouldn't the bank deal with the spouse directly to make arrangements to bring the mortgage into good standing without the need for an authorization?

The bank seems to be trapped by the privacy rules I think.

The spouse may need to get a court order which could possibly be done now.

The order can compel the other spouse to co-operate or else give the bank the authorization to speak to the spouse who wants to bring the mortgage into good standing.

I doubt the bank will allow installment payments once the mortgage goes into default but it's possible.

I don't know if the spouse would get notice though I would think so.
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Customer reply replied 4 years ago


What section of the Family Law Act and/or Family Law Rules, etc. would authorize such an order, e.g. for third party disclosure requiring the bank to be served as well???? to compel the spouse...?

There is no specific section under the Act.

Usually it would be considered as part of the division of issue area where the spouse is compelled to co-operate in terms of directing the bank so the asset can be protected.
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Customer reply replied 4 years ago


Would it be better for the one spouse to offer to pay 1/2 the mortgage amount in arrears if the other spouse also has 2 other debts on a credit card (unsecured) and a line of credit (secured on the house) for which he is already receiving letters threatening further legal action to collect which could include a writ of seizure and sale (although one also has the option of a questioning re assets, income, etc.) until a case conference in November.


 


Would a motion perhaps be best in the meantime to request a questioning for him to bring what records he has of work done at one of his self-employment occupations and to get him to estimate income, more detail of who worked for and for how much and to desribe some of his expenses which seem to be for his work yet the income doesn't appear to be covering what appear to be business expenses.


 


The spouse is saying that the loan of $25,000 to him to help pay down his debt should not be considered a loan as it was used toward joint expenses for the family yet none of the credit cards used were jointly owned. It would appear to be a loan rather than just another contribution to the marriage wouldn't it?

I don't know what is best in terms of these details.

But what is best generally is to try and do what everyone can to keep the house from being seized.

So that's what I think should happen until November.

All assets and debts acquired during the marriage are going to be considered by the Court at the end of the day no matter what they were for, who got them, etc.
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Debra
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