FORECLOSURE AND CANCELLATION PROCEEDINGS
Foreclosure actions, Recovery on convenant only
433 Actions by a mortgagee, his personal representatives or assigns, for foreclosure of the equity of redemption, or for sale or possession of the mortgaged premises, or for the recovery of any moneys payable under the mortgage, or for the appointment of a receiver, or for other incidental relief, may be commenced by Statement of Claim and except as herein otherwise provided, the general procedure and practice of the court shall be adopted and applied in all actions commenced under this part:
provided that in an action wherein it is sought to recover only the amount due under a mortgage the proceedings shall be carried on under the general rules. R. 433.
The Land Contracts (Actions) Act; The Limitation of Civil Rights Act
434 Except where inconsistent with The Land Contracts (Actions) Act or The Limitation of Civil Rights Act, the Rules of Court as to the practice and procedure in the Queen’s Bench shall apply to proceedings under the above mentioned Acts. R. 434.
Appointment to hear application
435 To obtain an appointment to hear an application for leave to commence an action under The Land Contracts (Actions) Act, the applicant must show by affidavit:
(a) the name of the proposed plaintiff and defendant and the nature of their interest;
(b) the nature and extent of the relief sought by the proposed plaintiff. Such appointment may be in Form 51. R. 435.
Claim
436(1) The claim in all actions commenced under this part shall be in Form 52 except as otherwise provided in this part.
Contents of
(2) It shall not be necessary in such claim to allege any of the terms, covenants or conditions expressed or implied in the mortgage, or in any agreement for the extension of time for payment under the said mortgage or varying the terms or conditions thereof, or of any other fact to any greater extent than is indicated in the said Form 52 and all terms, covenants, conditions and allegations necessary to support the plaintiff’s claim under the said mortgage or any agreement relating thereto shall be deemed to have been duly pleaded.
Defendants
(2A) All persons who appear from the records of the proper Land Titles Office to have an interest in the equity of redemption shall be named as defendants. Gaz. Oct. 25/91. New.
Demand for particulars, Stay until ordered
(3) A defendant shall be entitled at any time by notice in writing to demand particulars of the amount claimed by the plaintiff, and the plaintiff shall within three days from the receipt of such notice, deliver to such defendant a statement of account setting forth full particulars of the amount claimed by him, or mail such statement to the said defendant by registered mail to the address given by the defendant in his said notice; and if the plaintiff fails to comply with such demand, the said defendant may, without delivering any defence to the Statement of Claim, apply, to the court for an order staying the action as against him, until such demand be complied with, and the court may grant such order on such terms as to costs or otherwise as may be just.
Service of Statement of Claim
(4) Any statement of claim in any action commenced under this part, may be served upon any of the defendants, other than the defendant who was the registered owner of the mortgaged premises at the time of the issue of the Statement of Claim, and those defendants against whom judgment for the recovery of money is claimed, by forwarding to such defendants by registered mail, a true copy thereof, and such service shall be deemed sufficient, if a post office confirmation of delivery to the person to be served is produced as an exhibit to the affidavit of service. Such affidavit of service shall be in Form 53. R. 436. Amend. Gaz. Dec. 13, 2002.
Service on parties interested
437 The court shall upon the application for order nisi, direct all such persons as appear from the material before it to have acquired any lien, charge or incumbrance upon the mortgaged land, or to have otherwise become interested in the subject matter of the action subsequent to the issue of the Statement of Claim, to be served with a copy of the order nisi by registered mail. R. 437.
Certificate by local registrar
437A(1) The local registrar may, on request by the plaintiff, search the court record and file a certificate of search in Form 54A as proof that no payment has been made to the credit of the action.
Certificate of lawyer
(2) The plaintiff’s lawyer may file a certificate of lawyer in Form 54B as proof that no payment has been made to the office of the plaintiff’s lawyer to the credit of the action. R. 437A. Gaz. Oct. 25/91. New.
Determination of amount due
438(1) Upon application for order nisi the court shall determine the amount due under the mortgage or under any agreement for the extension of time for payment thereof or varying the terms and conditions thereof, and for that purpose may make any order for reference for the purpose of taking the accounts which may be necessary, and shall fix a time within which the defendant or defendants may redeem the mortgage which order shall be in Form 55.
Anticipated rents and profits
(2) In determining the amount due and required to redeem, the plaintiff may estimate the amount of and give credit for anticipated rents and profits to be derived from the land in question before the expiration of the period of redemption and if the amount actually received does not exceed the amount so anticipated it shall not be necessary by
Change of account after order
(3) Except as provided in Subrules (2), (4) and (5) hereof where the state of the accounts ascertained by a judgment or order under this rule is changed before the date fixed for redemption the plaintiff may apply ex parte or upon notice, as the court may determine, to fix the amount to be paid in lieu of the amount previously ascertained and upon such application the court may fix a new period of redemption.
Notice of credit given after order nisi
(4) Where the day appointed for payment by any order nisi under this rule has not arrived and the state of the account has been changed by payment or otherwise, the plaintiff may give notice, by registered mail if no defence has been delivered, to the party by whom the money is payable that he gives him credit for a sum certain to be named in the notice and that he claims that there remains due in respect of such mortgage a sum certain to be named in such notice.
Final order without new period of redemption
(5) Where such notice of credit has been given, if the sums named therein appear proper to be allowed and paid, the final order may be granted without fixing a new period of redemption, but the party, to whom the notice is given may apply to the court, to fix by reference or otherwise, the amounts proper to be allowed and paid instead of the amounts mentioned in such notice.
Payments after redemption period
(6) Where after the expiration of the period of redemption but before order absolute is made, the plaintiff shall receive any money by, way of rents and profits of the land in question, the court may make the final order without fixing a new period of redemption. R. 438.
Immediate possession in order nisi
439(1) If in any action commenced under this part the plaintiff shall in his statement of claim ask for immediate possession of the land in question, the court may upon the application for order nisi direct that the plaintiff shall have immediate possession of such land.
After order nisi
(2) If an order for possession is not made upon the application for order, nisi the court may at any time after the order nisi has been made and before the expiration of the period fixed for redemption, upon the application of the plaintiff and upon such notice, if any, as the court may direct, make an order that the plaintiff shall have immediate possession of such land. R. 439.
Actions in respect to agreements for sale of land
440 All of the provisions of this part applicable to mortgage actions shall apply mutatis mutandis to actions by vendors, or their personal representatives or assignees, for specific performance or cancellation of agreements for the sale of land, or for sale or possession of the land sold under any such agreement, or for such other relief as may be granted under the provisions of any such agreement, save that the claim in all such actions shall be in Form 54. R. 440.