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Tag: statement of claim

Mortgage Enforcement: Issues for Discussion

IntroductionCommon issues expected to arise and confront legal counsels in mortgage enforcement practice, whether from the mortgagor’s perspective or from the lender’s perspective are under discussion here. Divided into ten sections, each of which addresses a discrete point, the purpose is to assist counsels in identifying the relevant issues, the common problems, and the usual solutions.Entitlement to 3-Months InterestAccording to Section 17(1) of the Mortgages Act:“Despite any agreement to the contrary, where default has been made in the payment of any principal money secured by a mortgage of freehold or leasehold property, the mortgagor or person entitled to make such payment may at any time, upon payment of three months interest on the principal money so in arrear, pay the same, or the mortgagor or person entitled to make such payment may give the mortgagee at least three months notice, in writing, of the intention to make such payment at a time named in the notice, and in the event of making such payment on the day so named is entitled to make the same without any further payment of interest except to the date of payment.”

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If a litigant decides to proceed by way of an action, rather than by an application, it is necessary to serve either a Notice of Action (followed by a Statement of Claim), or simply a Statement of Claim.  Countermeasures can be taken by the defendant consisting of  a counterclaim against the plaintiff; a crossclaim against any co-defendant; or a third party claim against a person not yet a party to the litigation (the main action).

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After starting an action or application by issuing and serving a Notice of Action followed by a Statement of Claim or just by issuing a Statement of Claim, there is a possibility of dealing with certain matters that will end the dispute completely before a trial, or  the hearing itself will be considerably shorter and/or much less costly.

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An originating process (i.e., a statement of claim, notice of action, notice of application or application) is to be served personally in accordance with the Rules of Civil Procedure (Rules).  Their are alternatives to this in specific situations. Unless a specific rule or order requires it, no other document has to be served personally or by an alternative to personal service. Such documents (not required to be

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For a rule or statute, requiring a proceeding to be commenced, brought, tried, or heard in a particular county, the proceeding must be commenced in that county and the county must be named in the originating process, the statement of claim or application.  Failing this, the proceeding may be commenced at or transferred to any court office in any county named in the originating process.

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Forgetting to Defend a Law Suit, Setting Aside the Default Judgment

I love this saying…“you can’t change the past but you can ruin the present by worrying about the future”. It applies to so many of us. Some of us become paralyzed over a mistake, a lapse in judgment, an event. The paralysis then creates an avoidance to do what you otherwise know you have/should be doing and voila, you bury your head in the sand wishing it all will go away.

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