The Bank Is Threatening Foreclosure on My Home
When a bank or other institution lends you money to buy a home, they take a mortgage on it. A mortgage is registered against the title of your home, and if you don’t make the promised payments, the bank may be able to foreclose on your home, which means you may have to pay them the entire amount owing on the mortgage or your house will be sold and the bank will be paid out of the proceeds of the sale. The usual first step in a foreclosure is a demand letter from the lender or its lawyer, saying that you are “in arrears” (behind) in your payments and demanding that you bring them up to date.
- Do not ignore the demand letter. You should either get legal advice right away or meet with the lender to see if you can arrange manageable payment terms.
- If you can’t work things out with the lender, the lender will probably send you a copy of a BC Supreme Court Petition asking for an Order Nisi of foreclosure. An Order Nisi will state the amount still owing on the mortgage and establish a time period — usually 6 months, but sometimes shorter — during which you can redeem, or pay off the mortgage. The lender may also ask for an order that your home be sold, and for an order that the lender will have conduct (control) of the sale.
- If you receive a Petition of foreclosure, you must file an Appearance within 7 days, (indicating that you want to be given all court documents and may want to attend any court hearings), and deliver a Response to the Petitioner within 8 days of filing the Appearance, together with affidavits (sworn written statements) telling your side of the story.
[You can get a blank Appearance, Response and Affidavit at any Supreme Court Registry or most Service BC (Government Agent) Offices. Call Enquiry BC at 1-800-663-7867 for information on the one nearest you. Supreme Court forms are also available online at the Courts of BC website, [www.courts.gov.bc.ca]. Click on Supreme Court, then Practice and Procedures, then Act, Rules and Forms. For information on what should go into an affidavit, see #35-Legal Services Society Publications in Part 2 of this Guide, for a copy of the publication, “Can’t Pay Your Mortgage? What you can do if you’re facing foreclosure”.]
What happens next?
The court will set a date for a hearing of the Petition. The judge will read the affidavits and other materials and listen to the lender’s lawyer and to you. Generally, if you are in default of the mortgage, the best you can hope for is a longer period of time to arrange for other financing to pay out the lender, and, if it is necessary to sell the house, an order that you have conduct of the sale instead of the bank.
Where to get help
See Part 2- Resources, starting on page 43, for a list of helpful resources. Your best bets are:
- 17-Credit Counselling Society of BC.
- 1-Access Justice, #34-Lawyer Referral Service, #51-Salvation Army Pro Bono Lawyer Consultation Program, *45-Private Bar Lawyers.
- 35-Legal Services Society Publications: “Can’t Pay Your Mortgage? What you can do if you’re facing foreclosure”.
Before meeting with a lawyer or advocate, complete the form, Preparing for Your Interview, in Part 3 of this Guide (page 57). Make sure you bring copies of all documents relating to your case.