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Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
FORECLOSURE ACTIONS
Grant A. Richards Cuelenaere Kendall Katzman & Watson
500, 128 – 4th Avenue South Saskatoon, SK S7K 1M8
Saskatchewan: Bar Admission Program i Debtor Creditor – Foreclosure
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TABLE OF CONTENTS I. INTRODUCTION ...............................................................................................................1 II. INITIAL CONSIDERATIONS ...........................................................................................2 A. JUDICIAL CENTRE .....................................................................................................3 B. STATEMENT OF CLAIM OR LEAVE TO COMMENCE .........................................4 1. The Land Contracts (Actions) Act ............................................................................4 2. The Saskatchewan Farm Security Act. .....................................................................5 C. IS THE BORROWER A FARMER?.............................................................................6 D. WHO TO SUE? (THE PERSONAL LIABILITY ISSUE)...........................................7 III. NOTICE OF INTENTION ................................................................................................10 IV. LEAVE TO COMMENCE ................................................................................................11 V. STATEMENT OF CLAIM................................................................................................16 VI. ORDER NISI FOR FORECLOSURE ...............................................................................18 VII. FINAL ORDER FOR FORECLOSURE ...........................................................................21 VIII. JUDICIAL SALE...............................................................................................................22 IX. FORECLOSURES OF FARM LAND ..............................................................................26 A. PRELIMINARY CONSIDERATIONS.......................................................................27 B. NOTICE TO FARM LAND SECURITY BOARD AND FARM DEBT REVIEW BOARD ...............................................................................28 C. APPLICATION FOR SECTION 11 ORDER..............................................................29 D. PROCEEDINGS SUBSEQUENT TO OBTAINING SECTION 11 ORDER ............30 E. HOME QUARTER PROTECTION.............................................................................30 F. OTHER ISSUES...........................................................................................................31
1. Guarantors...............................................................................................................31 2. Costs........................................................................................................................31
X. MISCELLANEOUS ..........................................................................................................32 A. QUIT CLAIM ..............................................................................................................32 B. WRIT OF POSSESSION .............................................................................................33 C. COSTS .........................................................................................................................33 D. CONSENT FORECLOSURES....................................................................................34 E. CANCELLATION OF AGREEMENTS FOR SALE..................................................35
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PRECEDENTS: SAMPLE CHECKLIST.............................................................................................................P - 1 NOTICE OF INTENTION: Notice of Intention ...................................................................................................................P - 13 Affidavit of Service..................................................................................................................P - 15 LEAVE TO COMMENCE: Memorandum to the Presiding Judge in Chambers .................................................................P - 17 Affidavit of Default..................................................................................................................P - 19 Certificate of Solicitor .............................................................................................................P - 23 Appointment for Application for Leave to Commence an Action ..........................................P - 25 STATEMENT OF CLAIM......................................................................................................P - 27 ORDER NISI FOR FORECLOSURE: Notice of Motion......................................................................................................................P - 31 Memorandum to the Presiding Judge in Chambers .................................................................P - 33 Affidavit of Default..................................................................................................................P - 35 Certificate of Solicitor .............................................................................................................P - 39 Affidavit of Search...................................................................................................................P - 41 Certificate of Search ................................................................................................................P - 43 Order Nisi for Foreclosure .......................................................................................................P - 45 FINAL ORDER FOR FORECLOSURE: Memorandum to the Presiding Judge in Chambers .................................................................P - 51 Notice of Motion......................................................................................................................P - 53 Affidavit of Default..................................................................................................................P - 55 Certificate of Solicitor .............................................................................................................P - 57 Affidavit of Search...................................................................................................................P - 59 Certificate of Search ................................................................................................................P - 61 Final Order for Foreclosure .....................................................................................................P - 63 Affidavit of Value and Postal Address ....................................................................................P - 65 JUDICIAL SALE: Notice of Motion......................................................................................................................P - 67 Memorandum to the Presiding Judge in Chambers .................................................................P - 69 Affidavit of Default..................................................................................................................P - 71 Certificate of Solicitor .............................................................................................................P - 73 Affidavit of Search...................................................................................................................P - 75 Certificate of Search ................................................................................................................P - 77
Saskatchewan: Bar Admission Program iii Debtor Creditor – Foreclosure
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
PRECEDENTS: JUDICIAL SALE, continued Order Nisi for Sale ...................................................................................................................P - 79 Notice of Motion......................................................................................................................P - 83 Memorandum to the Presiding Judge in Chambers .................................................................P - 85 Affidavit of Default..................................................................................................................P - 87 Certificate of Solicitor .............................................................................................................P - 89 Affidavit of Search...................................................................................................................P - 91 Certificate of Search ................................................................................................................P - 93 Order Confirming Sale.............................................................................................................P - 95 FORECLOSURE OF FARM LAND: Notice of Intent to Realize on Security....................................................................................P - 99 Notice of Intention .................................................................................................................P - 101 Notice of Motion....................................................................................................................P - 103 Order ......................................................................................................................................P - 105 MISCELLANEOUS: Quite Claim Deed ..................................................................................................................P - 107 Writ of Possession..................................................................................................................P - 111 Memorandum to the Presiding Judge ....................................................................................P - 113 Acknowledgment and Consent ..............................................................................................P - 115 Affidavit of Execution ...........................................................................................................P - 117 Order ......................................................................................................................................P - 119
Saskatchewan: Bar Admission Program 1 Debtor Creditor – Foreclosure
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
I. INTRODUCTION
Most foreclosure actions are relatively simple to conduct. However, as there are numerous
“hurdles” to be cleared during the course of the proceedings, errors can be made by the lawyer
conducting same. These errors often will cause a delay in the matter which can be prejudicial to the
lender client. It is hoped that the precedents contained in the materials will provide a useful guide
which will assist one in conducting foreclosure actions with minimal mistakes. Like any
precedents, however, it is important for the practitioner to keep in mind that as the law changes,
precedents must constantly be updated. Aside from filing the proper materials, it is useful to keep the following four “rules of thumb” in
mind as one conducts the proceedings. Keep fresh material before the Court at all times. The Chambers Judge may overlook the fact
that the information filed is several months old but if not, in all likelihood, he or she won’t want
to make a decision with respect to your application because there is uncertainty as to whether or
not the information previously filed may have changed in some material aspect. It is good
practice to make sure that relevant information such as the statement of arrears, the date of the
last payment, a Land Titles Registry Search Result and Writ Registry Search are never more than
one month old at the time of the return date of any application. Keep the proceedings moving. Generally, mortgage foreclosure clients are banks, trust
companies or credit unions who wish to have the proceedings concluded as quickly as possible
in order to “get the arrears problem off of the books” either by having the mortgage paid or by
having the property foreclosed. It is especially important in cases where there is little or no
equity to keep the matter moving in order to prevent or at least minimize a loss to your client. Keep your client informed. Financial institutions must make periodical reports to their head or
regional offices with respect to the progress being made in foreclosure proceedings. Accordingly, it
is important to keep them informed as the matter progresses. Use a checklist. Sample checklists are in the precedents section of the materials.
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II. INITIAL CONSIDERATIONS
Often the initial instructions a lawyer receives in a foreclosure action is to send a demand letter
to the borrower requesting payment of the arrears within a specified time (i.e., ten days), failing
which legal proceedings are to be commenced. While it is not a necessary step in the
proceedings (assuming that the mortgage is not payable “on demand”) a demand letter on
occasion results in the arrears being paid or an acceptable proposal for repayment being made.
The demand letter is not necessary except where the mortgage is payable on demand. Either will
lessen the legal costs of concluding the matter. Copy the demand letter to the client as a means
of acknowledging the initial instructions. Assuming there is no reply to the demand letter,
advise the client and request the following information if it is not already provided with the
initial instructions:
• Statement of Arrears including:
(i) arrears of principal and interest; (ii) arrears of tax installments (if any); (iii) accelerated principal; and (iv) any other expenses incurred by your client in maintaining its security
including payment of property taxes and/or fire insurance premiums on behalf of the borrower.
• A copy of the mortgage and, where applicable, any extension or assumption
agreements that apply to the mortgage.
It is also a good idea at this time to advise the lender to ensure that fire insurance coverage has
not lapsed, that vacancy insurance should be considered if the property is vacant, and that the
utilities are being maintained. The latter is especially important in the winter months as
substantial damage to the mortgaged premises can occur if the electricity and gas are cut off due
to non-payment by the borrower. Most institutional lenders have blanket policies in place to
cover these contingencies, however, non-institutional lenders likely will not.
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Upon receiving or confirming instructions to go ahead with the foreclosure proceeding,
acknowledge same to the client and obtain a title search of the property to ascertain who the
registered owners are and who else has an interest in the title. Also conduct a tax search to
ascertain whether or not any property taxes are outstanding.
Upon searching a lawyer should be in a position to commence the proceeding. At this time the
following four considerations are important:
• In which judicial centre should the proceeding be commenced?
• Can a Statement of Claim be issued immediately or is leave of the Court pursuant to either of the following required: (i) the Land Contracts (Actions) Act; or (ii) the Saskatchewan Farm Security Act?
• Is the borrower a “farmer” as defined in the Farm Debt Review Act?
• Who are the parties you are going to sue in the proceeding?
A. JUDICIAL CENTRE
Section 133 of the Land Titles Act provides that proceedings to enforce payment of monies
secured by the mortgage, (or for sale or foreclosure of the mortgaged land) may be had and taken
in the Court of Queen’s Bench. The Queen’s Bench Act, s. 53(4) provides that unless otherwise
ordered, all actions for foreclosure or sale under a mortgage must be entered, continued and tried
at the judicial centre nearest to which the land or any part of it lies. Section 96 of the Queen’s
Bench Act provides the procedure to be used in determining the nearest judicial centre to the land
in question. Where the action is not commenced in the correct judicial centre, no further
proceedings can be taken (Eston Credit Union Ltd. v. Petterson, [1979] Sask. D. 2768-01),
although s. 23 of the Queen’s Bench Act does not contain curative provisions where the action is
commenced in the wrong judicial centre.
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Also note that the Land Contracts (Actions) Act, R.S.S. 1978, c.L-3, s. 3(6) provides that an
application for an appointment for leave to commence an action “shall” be made at the judicial
centre nearest to which the land or any part thereof is situated and every hearing shall take place
at that judicial centre. If the mortgage covers two parcels of land, each of which is closer to a
different judicial centre, the application can be commenced at either judicial centre. It is not
necessary to make two separate applications.
B. STATEMENT OF CLAIM OR LEAVE TO COMMENCE
1. The Land Contracts (Actions) Act
The Land Contracts (Actions) Act, s. 3(1) provides that no action by a lender for foreclosure, sale
or possession of the mortgaged premises or the recovery of any monies payable under the
mortgage can be commenced except by leave of the Court granted upon application under the
Act. There are, however, some exceptions to this which allow the lender to commence the
proceedings simply by issuing the Statement of Claim rather than having to obtain leave of the
Court to do so. These include the following:
(a) Section 5 of the Land Contracts (Actions) Act provides that a corporation may agree in writing that the Act has no application to an action and where there is such an agreement made by a corporate body the Act does not apply to such an action. Accordingly, where the borrower is a corporation which waived the provisions of the Act and the corporation is still the registered owner of the property, the Act does not apply and the action can be commenced by a Statement of Claim without leave of the Court. Based on the reasoning of the Supreme Court of Canada in the case of National Trust v. Mead, [1990] 5 W.W.R. 459, leave would be required where an individual has formally assumed the mortgage even though the original corporate borrower waived the provisions of the Act. Leave would not likely be required where the individual has obtained title to the property but not assumed the mortgage with the consent of the lender.
(b) Section 6 of the Land Contracts (Actions) Act provides that the Act does not apply to a mortgage to secure a loan made under the Industrial Development Bank Act (Canada) by the Industrial Development Bank.
(c) Section 7 of the Land Contracts (Actions) Act provides that the Act does not apply to a mortgage given to secure a loan made under the Federal Business Development Bank Act (Canada) by the Federal Development Bank.
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(d) Section 39 of the Housing and Special-Care Homes Act, R.R.S. 1978, C. H-13 provides as follows:
“Where a loan in respect of a special care home or housing project contemplated by this Act is made under the National Housing Act (Canada) or any former National Housing Act (Canada) and secured by a mortgage on land in Saskatchewan, the Limitation of Civil Rights Act, the Land Contracts (Actions) Act and the Saskatchewan Farm Security Act shall have no application to the mortgage or to the rights and remedies of the mortgagee thereunder.”
As a result, if the loan is made under the National Housing Act (Canada) with respect to a special-care home or housing project, the Land Contracts (Actions) Act does not apply and leave of the Court to commence the action is not required.
(e) A similar provision to s. 39 of the Housing and Special-Care Homes Act is found in s. 46 of the Saskatchewan Housing Corporation Act, R.S.S. 1978, c. S-24 which relates to low income, co-operative housing, urban renewal and student housing projects, as well as general housing assistance.
2. The Saskatchewan Farm Security Act
Section 11(3) of this Act provides that any action to foreclose a mortgage on farm land is a
nullity unless an order of the Court allowing the lender to commence or continue the action is
obtained pursuant to that section. Farm land is defined in s. 2(1)(f) of the Act as property in
Saskatchewan situated outside a city, town, village, hamlet or resort village that is used for the
purpose of farming. Farming is broadly defined in s. 2(1)(g) of the Act to include almost every
type of farming activity imaginable.
The Act also applies to the parcel of land on which the buildings, etc., are situated even though
same is not being farmed in the sense of putting in crop, etc. (Bank of Montreal v. Ducheminsky
Farms Ltd., [1985] Sask. D. 2764-01 (Q.B.)). Although the Act would appear to cover situations
where the borrower was renting the land to a third party and not actively farming, the Court of
Appeal in the case of Christie v. Texas Industries Ltd., [1986] 1 W.W.R. 532 has held that the
borrower must have a “realistic involvement in farming” before the transaction is brought within
the scope of the Act. It would, however, appear that a “realistic involvement in farming”
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does not mean that the borrower must earn all or even a major portion of their income from
farming (Ledinski v. Laursen, [1986] Sask. D. 2761-01). These cases were decided when the old
Farm Land Security Act was in effect but given the similar definitions of “farming” and “farm
land” in that Act, these cases are likely to be followed by the Court in considering the
Saskatchewan Farm Security Act. Accordingly, if the land being foreclosed is farm land within the meaning of the Act, no action
can be commenced (or continued) until an order is obtained pursuant to s. 11 of the Act
exempting the mortgage (or agreement for sale) from the provisions of the Act. The procedure
for obtaining such an order is discussed in later materials. It should be kept in mind that if an
order is obtained under the Act, the lender does not need to also apply for leave under the Land
Contracts (Actions) Act (s. 9(1)(b) of the Saskatchewan Farm Security Act).
C. IS THE BORROWER A FARMER?
The federal Farm Debt Review Act which came into force in 1986 provides in s. 22 as follows:
“(1) Every secured creditor who intends to realize on any security of a farmer shall give the farmer written notice, in the prescribed form containing the prescribed information, of his intention to do so and in the notice shall advise the farmer of the right of an insolvent farmer to make an application under Section 20.
(2) The notice referred to in subsection (1) shall be given to the farmer in the prescribed manner at least fifteen business days before the taking of any action by the secured creditor to realize on the security.”
A farmer is defined in the Act as any individual, partnership, corporation or co-operative
association engaged in farming, which is also widely defined. Given the wording of s. 22, it
appears that the Act does not just apply to a mortgage on land that is being farmed but to all
mortgages a farmer may have given including, for example, a mortgage on a revenue property
the farmer has purchased. The federal government has also advised lenders that the Act is meant
to apply to part-time farmers as well as full-time farmers.
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Assuming that the borrower is a farmer, you can serve the notice required pursuant to s. 22 at the
same time you serve the notice required under the Land Contracts (Actions) Act or the
Saskatchewan Farm Security Act, as the case may be.
If the borrower is a farmer within the meaning of the Act and neither the Land Contracts
(Actions) Act or the Saskatchewan Farm Security Act apply to the mortgage, the notice required
by s. 22 should be served prior to issuing the Statement of Claim.
Once the notice is given under the Farm Debt Review Act, the farmer can apply for a stay of
proceedings and during the stay no creditor “shall commence or continue any actions or
proceedings to realize on the security or recover the debt”. This aspect of the Act is also discussed
later in the materials.
D. WHO TO SUE? (THE PERSONAL LIABILITY ISSUE)
Generally speaking, a mortgage is an agreement consisting of the following terms:
• a promise by the borrower to pay a debt owing to the lender;
• a granting of a security interest in the borrower’s equity of redemption to the lender; and
• miscellaneous terms relating to the security (i.e., covenants to insure, pay taxes, etc.). According to Mr. Justice Scheibel in Marine Water Wells Ltd. v. Dobson & Co. Refrigeration &
Air Conditioning Ltd., [1982] Sask. D. 2750-01, “the mortgage is a contract between the parties
and covenants contained therein may be enforced by the parties except when modified by statute,
unless they are contrary to public policy or constitute a restraint of the power of alienation”.
This is also true with respect to the covenant in the mortgage whereby the borrower undertakes
to repay an indebtedness to the lender. In situations where the amount owing on the mortgage is
more than the value of the property, it may be important for the lender to obtain a personal
judgment against the borrower to be used to recover any deficiency in addition to realizing on
the security. The covenant to pay can form the basis for such personal judgment and is generally
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found in the Order Nisi for Foreclosure or Order Nisi for Sale. This is an ordinary judgment,
except to the extent that it may be relieved against (by paying any arrears) pursuant to the
provisions of s. 44(8) of the Queen’s Bench Act.
Where the borrower transfers the property to a third party, the original borrower may not be
relieved of his or her obligation under the mortgage. A judgment can still be obtained on the
covenant to pay unless the lender has released the borrower from such obligation (formally or by
way of novation) or the borrower can rely on a legislative prohibition prohibiting judgment on
his covenant. (Investors Mortgage Security Co. v. McDonald, [1927] 1 W.W.R. 671 and Central
and Eastern Trust Co. v. Rosebowl Holdings Ltd. (1981), 34 N.B.R. (2d) 308.) In such cases,
however, the transferor is entitled to be indemnified by the transferee by virtue of the provisions
of s.74(2) of the Land Titles Act which implies an agreement by the transferee to indemnify the
transferor in every transfer of land. The provisions of the Limitation of Civil Rights Act
discussed later will, however, restrict this right of indemnification in some cases. In
Saskatchewan, unlike many other jurisdictions, a transferee will not, however, be liable directly
to the lender unless a covenant to pay is made directly with the lender. Such covenants often
arise in both assumption and mortgage extension agreements and are enforceable in the same
manner as the covenant in the original mortgage.
As mentioned however, there are statutory limitations on the right to obtain a personal judgment
based on the covenant to pay. The most notable is s. 2 of the Limitation of Civil Rights Act,
which provides as follows:
“2(1) Where land is hereafter sold under an agreement for sale in writing, or mortgaged whether by legal or equitable mortgage for the purpose of securing the purchase price or part of the purchase price of the land affected, or where a mortgage is hereafter given as collateral security for the vendor’s or mortgagee’s right to recover the unpaid balance due shall be restricted to the land sold or mortgaged and to cancellation of the agreement for sale or foreclosure of the mortgage or sale of the property, and no action shall lie on the covenant for payment contained in the agreement for sale or mortgage.
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(1.1) The benefit of subsection (1) extends to and includes a mortgage that secures, or is given as collateral security for, the purchase price or part of the purchase price of the land, whether or not the lender was the vendor of that land.”
(2) The benefit of subsection (1) extends to and includes: (a) the personal covenant of the purchase contained in any assignment by the vendor of
such an agreement for sale; (b) the personal covenant of the assignee contained in any assignment by the purchaser
of such an agreement for sale; (c) the personal covenant of the mortgagor contained in an agreement extending any
such mortgage; (d) the personal covenant of a purchaser of lands subject to any such mortgage, to
assume and pay the mortgage;”
It should be kept in mind that s. 2 of the Limitation of Civil Rights Act does not apply to all
mortgages but only those where the mortgage monies were loaned for the purpose of allowing
the borrower to purchase the mortgaged property. Situations where s. 2 of the Limitation of Civil
Rights Act does not prevent the lender from pursuing an action on the covenant include those
where the mortgage is given to secure debts unrelated to the purchase price of the mortgaged
property (e.g., line of credit equity loans, second mortgage, debt consolidation loans).
In addition, s. 40(2) of the Limitation of Civil Rights Act provides that a corporate borrower may
waive the provisions of the Act and such waiver shall be binding on the corporation, its
“successors and assigns”. In cases where an individual formally assumes the mortgage given by
a corporation which waived the provisions of the Act, however, this waiver will not apply to the
individual who will be entitled to the protection of the Act. (National Trust v. Mead, [1990] 5
W.W.R. 459 (S.C.C.).)
In addition to suing individuals who covenant in the mortgage to repay the mortgage monies, a
lender may be in a position to proceed against a guarantor to recover the monies owing on a
mortgage, including a deficiency. Leave against a guarantor is not required under the provisions
of the Land Contracts (Actions) Act and the guarantor is not entitled to the protection of
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s. 2 of the Limitation of Civil Rights Act. (See Gravelbourg Savings v. Bissonette, 43 S.R. 241;
Sedco v. Western Bore 41 S.R. 136.) A guarantor may however, be protected from liability in
cases where the debt is extinguished by virtue of s. 6 of the Limitation of Civil Rights Act (upon
final order being obtained) or by operation of the common law if the borrower has disposed of
the property in situations where the Act does not apply (i.e., corporate waiver). In such cases it
is preferable to proceed by way of judicial sale rather than foreclosure.
A guarantor can be sued prior to, concurrently with, or after the action on the lender. (Home
Mortgage Ltd. v. Robertson (1985), 35 S.R. 84.) There appears, however, to be no compelling
reason not to sue the guarantor in the foreclosure action rather than commencing two separate
actions. In the event a defence is filed by a guarantor denying liability on the guarantee but not
by the borrower (a common stall tactic used by guarantors hoping to effect settlement) the Court
can allow the judicial sale to proceed prior to resolving the guarantee issue by trial. (See
Discovery Trust v. 5578432 Saskatchewan Ltd., [1986] Sask. D. 2771-01.)
III. NOTICE OF INTENTION
Upon determining that the Land Contracts (Actions) Act applies and that leave of the Court to
commence the action is required thereunder, the first step in the foreclosure proceeding is to
prepare a Notice of Intention and serve it on the Provincial Mediation Board. Sections 3(2) and
3(3) of the Act require the following with respect to the Notice of Intention to commence the
action:
• it must be served 30 clear days prior to the application for an appointment;
• it must be in writing;
• it must set forth the names of the parties to the proposed action; and
• it must set forth the nature of the proposed action.
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Section 3(3) provides that the notice may be served by registered mail on the Provincial
Mediation Board and shall be deemed to have been served on the date of the receipt of the
postmaster for the envelope containing the notice. A precedent for the Notice of Intention and
Affidavit of Service appears in the precedents section of the materials. You will note from this
precedent that more information is provided than required by the Act. It is intended for the
benefit of the Mediation Board in its dealings with the borrower.
Note also that the precedent states that upon the expiration of 30 days, the proposed plaintiff
intends to apply for an appointment to hear the application for leave to “commence an action as
defined in the Land Contracts (Actions) Act, R.S.S. 1978, Chapter L-3, against the Proposed
Defendant(s) on the mortgage above noted for (a) foreclosure of the equity of redemption, (b)
sale or possession of the mortgaged premises, and (c) the recovery of any monies payable under
the mortgage”. Utilizing the wording of the Act ensures that all relief for which leave is required
is mentioned in the Notice.
Once the Notice of Intention has been served on the Mediation Board and the Affidavit of
Service is prepared, it is good practice to advise the client that 30 days must elapse before any
further proceedings can be taken.
IV. LEAVE TO COMMENCE Upon the expiration of 30 clear days from the service of the Notice of Intention on the Provincial
Mediation Board the next step in the proceeding set out in s. 3(2) of the Land Contracts
(Actions) Act is to apply to a Judge in Chambers for an appointment to hear the application for
leave to commence the action. This application is made ex parte and the following documents,
precedents for which appear in the precedents section of the materials, should be filed:
• Memorandum to the Presiding Judge;
• Notice of Intention with Proof of Service;
• Affidavit of Default;
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• Certificate of Solicitor;
• Draft Appointment;
• Recent Land Titles Registry Search Result; and
• Writ Registry Search as to the name(s) of the registered owner(s). (Not required but may be useful to convince the Judge that leave ought to be granted immediately on the return date if there are writs outstanding.)
An important consideration at this stage is choosing the hearing date set out in the draft
Appointment. This date must be set to allow sufficient time for the following to occur after the
application material has been filed:
• the Judge must receive the file and grant the Appointment (2 to 3 days);
• you must issue it and forward it to your Process Server (1 to 4 days);
• your Process Server must serve it on the registered owners (7 to 14 days is generally sufficient); and
• persons who must be served with the Notice of Intention must be served at least 15 days prior to the hearing date (s. 3(7)).
Additional time may be required if the proceedings are taking place in a different judicial centre
or where you anticipate difficulty in serving the borrowers.
It should be noted that the Appointment and Affidavit of Default must not only be served on
the registered owner but “on any person, other than a tenant, in personal occupation of the
land” (s. 3(4)). Presumably this would include the spouse of the borrower where the spouse is
not shown on title as a registered owner but is living in the property, although the practice of
the Courts has been to ignore this situation. There is no requirement that the Appointment be
served on the original borrower where the property has been transferred regardless of whether
or not a judgment is being sought against that person as well. Section 5 also provides that any
person other than a tenant in personal occupation of the land includes a person farming the
land notwithstanding that they don’t reside on the land.
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Section 3(8) of the Act provides that the Appointment can be served by Registered A/R Mail.
However, if this method is used there is no way of ensuring that proper service will be effected
or effected in time. Failure to effect proper service will require the issuing of a new
Appointment and cause a delay in the proceeding. As a result, personal service is preferred. Once the application materials are filed, the Local Registrar should advise when the Appointment
has been granted. After the materials have been filed for a few days, check with the Local Registrar
in order to make certain that they have not neglected to advise of the Appointment being granted.
Upon the Appointment being granted, it can then be completed, issued and forwarded together with
sufficient copies and Affidavits of Default to the process server with instructions to effect service of
both documents on the necessary parties. In giving instructions to the process server, advise as to
the address of the parties and any other information which may help in locating the parties to be
served. Note that the Affidavit of Default must be served with the Appointment. The Act also provides in s. 3(4) that in three circumstances leave to commence the action can be
granted ex parte without a hearing being required. These circumstances include the following
and must be before the Court in Affidavit form:
• if it appears to the Judge that there is no person upon whom notice can be served and no person upon whom service should be ordered.
• where the registered owner of the mortgaged land has consented to the application.
• where the registered owner has abandoned the land and does not reside in the province.
The materials filed are essentially the same as those filed in the application for the appointment except:
• the Memorandum to the Presiding Judge should request leave as opposed to an appointment for a hearing date and it should set out the grounds on which the leave is being sought on an ex parte basis;
• the affidavit of the mortgage officer (or anyone else having the necessary knowledge) should also include information establishing the grounds for seeking leave on an ex parte basis; and
• no draft appointment need be filed.
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Rule 435 of the Queen’s Bench Rules states that in order to obtain the appointment to hear an
application for leave to commence the action, the applicant must show by Affidavit:
• the name of the proposed plaintiff and defendant and the nature of their interest; and
• the nature and extent of the relief sought by the proposed plaintiff.
The Rule also states that such appointment may be in Form 51. Note that in the last page of the
Affidavit of Default the relief is set out as follows:
• foreclosure of the equity of redemption of the defendants;
• sale or possession of the mortgaged premises;
• the recovery of any monies owing under the said mortgage; and
• costs.
Some solicitors in the past had been in the practice of simply stating the relief as “leave to
commence an action for foreclosure”. This is not sufficient if one also wishes to obtain a
judgment on the covenant or sale of the mortgaged premises. In the event that leave is granted in
such a case, the plaintiff will be restricted to foreclosure only. Authority for this is found in the
unreported case of MacLeod Stedman Ltd. v. Pool, Judicial Centre of Moose Jaw, a decision of
Mr. Justice F. W. Johnson, dated June 15, 1967. In that case, the plaintiff was granted leave to
commence an action for foreclosure only. Leave was not granted to seek any other relief
because the plaintiff did not seek same. The plaintiff did, however, issue a Statement of Claim
seeking foreclosure of the mortgage, sale of the mortgaged premises and a personal judgment
against both defendants for any deficiency after the sale thereof. Mr. Justice Johnson stated that
“because the plaintiff herein only obtained leave to commence an action for foreclosure and no
other relief, it is my view that it is limited to foreclosure and my order so decrees”. Accordingly,
the relief requested in the Affidavit of Default must be set out fully.
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The relief should also be set out fully in the Appointment. Although Rule 435 states that the
Appointment “may be in Form 51’, it would appear that where the relief in the appointment is
simply stated as being “leave to commence an action as defined in s. 2 of the Land Contracts
(Actions) Act” the appointment might not be granted unless the specific relief sought is outlined
therein even though the affidavit fully sets out the relief sough. (See the Fiat of Mr. Justice
Wimmer dated February 21, 1984, in Discovery Trust Company of Canada v. Pek et al, Q.B. No.
191/84, Judicial Centre of Prince Albert (unreported).)
Just prior to the hearing date, the following documents should be filed:
• Proof of Service of the Appointment and Affidavit of Default;
• updated Affidavit of Default; and
• updated Land Titles Registry Search Result. Section 3(9) of the Land Contracts (Actions) Act provides that the Court can adjourn the
application for leave to commence for periods totalling up to eight months. The Court will often
do so when the borrowers appear and request time to bring the arrears up to date or sell the
property and pay out the mortgage. Updated Affidavits of Default and Land Titles Registry
Search Results should be prepared and filed prior to the date to which the application is
adjourned in situations where the application has been adjourned for more than one month.
It should be kept in mind that the hearing for leave to commence action is not the proper time for
the defendants to raise the issue of a possible defence to the action. Such defences are matters
for the Statement of Defence and the trial of the issue. (See The Household Realty Corporation
of Canada v. Lee (unreported) C.A. 8330, April 9, 1984 where the amount owing was disputed
and Rochdale Mall Corporation v. Damon Development Inc., [1986] 2 W.W.R. 719 (Sask. C.A)
where a defence based on s. 2 of the Limitation of Civil Rights Act was raised.)
It is important to keep in mind that if the application is adjourned for more than eight months any
further proceedings are a nullity (Boehm v. Vanderlinde, (1965) 43 D.L.R. (2d) 179).
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Upon leave to commence being granted, you should report to your client and request an updated
statement of arrears if you don’t already have same to prepare the Statement of Claim. A search
of the Writ Registry should also be conducted to find other encumbrances which attach but that
don’t appear on title.
V. STATEMENT OF CLAIM
Rule 436 of the Queen’s Bench Rules provides that the Statement of Claim shall be in Form 52
and an example of a Statement of Claim completed pursuant thereto appears in the precedents
section of the materials.
All persons who appear to be interested in the equity of redemption by virtue of holding
encumbrances which appear subsequent to the mortgage being foreclosed must be added as
defendants to the action. Such parties can be ascertained from both the Title and Writ Registry.
Encumbrancers may include second lenders, Writ of Execution holders, Builders’ Lien holders
and Caveators. Encumbrancers whose interests appear prior to the mortgage being foreclosed
need not be added as parties because the foreclosure action will not affect their priority or
security (Lumber Manufacturers Yards v. Moose Jaw Flour Mills (1914), 7 W.W.R. 876).
Municipal tax lien holders, though they appear on title subsequent to the mortgage being
foreclosed, need not be added as parties either because a foreclosure action cannot discharge a
municipal tax lien (s. 12 of the Tax Enforcement Act).
Once the Statement of Claim is prepared it should be issued. However, just prior to issuing it, a
search of the Title and the Writ Registry should be conducted to ensure that no further
encumbrances have arisen. If they have, these encumbrancers must later be added as parties to
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the action and this can cause a delay in the proceedings. Once the action is commenced,
however, subsequent encumbrancers need not be added as defendants although the Court will
generally direct that notice of the proceedings be served upon them (Bonneau v. Heagy, [1920] 1
W.W.R. 605).
Once the Statement of Claim is issued, it should be served on all of the defendants. The
registered owners at the time the Statement of Claim was issued and any other persons against
whom personal judgment is sought must be personally served, however, Rule 436(4) of the
Queen’s Bench Rules provides that other defendants can be served by Registered A/R Mail. The
Affidavit of Service by mail is provided in Form 53 of the Queen’s Bench Rules. In general, the
rules with respect to substitutional service, service on a corporation, etc., all apply with respect
to service of the Statement of Claim in a foreclosure action.
Upon service being effected, Proof of Service of the Statement of Claim should be filed at the
Court House and the defendants noted for default after 20 clear days from the date of service. As
soon as all of the parties have been noted for default, the materials for an application for an
Order Nisi for Foreclosure or Order Nisi for Sale can be prepared. You should also report to
your client at this time and request updated default figures.
In the event a Statement of Defence is filed, you will of course have to proceed to trial assuming
that the issue cannot otherwise be resolved or dealt with. In the event the defence is limited to
disputing the amount owed, it can be struck and dealt with by way of an accounting before the
Local Registrar pursuant to Part 23 of the Queen’s Bench Rules. It should also be kept in mind
that summary judgment is not available in a foreclosure or cancellation action (Bank of Montreal
v. Neptune’s Palace (1985), S.R. 287 (Q.B.)).
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VI. ORDER NISI FOR FORECLOSURE
Once it is determined that the next step in the proceedings is to bring an application for an Order
Nisi for Foreclosure (as opposed to a judicial sale of the property) the following documents,
precedents for which appear in the precedents section of the materials, must be filed:
• Notice of Motion or Memorandum to the Presiding Judge;
• Proof of Service of Statement of Claim;
• Affidavit of Default;
• Certificate of Solicitor;
• Affidavit of Search or Certificate of Local Registrar;
• Land Titles Registry Search Result;
• Writ Registry Search Result; and
• Draft Order Nisi (Form 55, Rule 438(1) of the Queen’s Bench Rules).
Where no parties have served and filed Demands for Notice, this application can be made ex
parte, however, if this is not the case, the application must be made by Notice of Motion which
must be served on all parties demanding notice at least three clear days prior to the return date.
Supporting materials should also be served on such parties and Proof of Service must be filed
prior to the return date.
When proceeding by Notice of Motion, the redemption period in the draft order can be left blank
as it will be determined by the Judge in Chambers. When proceeding ex parte, complete this
blank with a proposed redemption period. The normal redemption period is three months,
however, it may be shortened where the lender can show special circumstances such as lack of
equity or that the property is abandoned. The redemption period may also be extended beyond
three months where the borrower can show special circumstances for so doing such as the
possibility of a sale of the property or paying up the arrears if the redemption period is extended.
All such special circumstances should be before the Court in affidavit form.
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A lender may also wish to request immediate possession of the premises pursuant to Rule 439 of
the Queen’s Bench Rules. The facts which entitle the lender to such possession should be before
the Court in affidavit form. A paragraph ordering immediate possession can be inserted in the
Order Nisi if same is granted. The granting of possession to the plaintiff is discretionary and will
rarely be granted prior to or even at the time of the application of the Order Nisi unless there
appears to be some compelling reason to do so (Great West Life Assurance Co. v. Sebe Holdings
Ltd. et al, [1982] Sask. D. 2785-01 and Royal Bank v. McLean (1986) 42 S.R. 152).
Upon the return date of the application for an Order Nisi for Foreclosure, one or more of the
defendants may request a judicial sale of the property. Generally, the Court will grant the
request provided there is sufficient equity in the property such that if the judicial sale eventually
proves abortive (no bids), the plaintiff’s position will not be jeopardized. In such instances, the
solicitor for the lender, should ensure that the reserve bid set in the Order Nisi for Sale will be
sufficient to allow for the payment of Sheriff’s costs, legal costs and the amount owing under the
mortgage. This is further discussed in the Judicial Sale section of the materials.
Assuming that no judicial sale is requested and the Order Nisi for Foreclosure is granted, the
Order should be issued and then must be served on all defendants regardless of whether or not a
Demand for Notice was filed. The Order Nisi is usually ordered to be served on the registered
owner by personal service regardless of whether or not they have filed a Demand for Notice, on
other appearing parties by service on their solicitors, and on all other defendants by ordinary
registered mail. Rule 437 of the Queen’s Bench Rules provides that the Court, upon the
application for an Order Nisi, shall direct all persons as appear from the material to have
acquired any interest in the property since the issuance of the Statement of Claim to be served
with a copy of the Order Nisi by way of registered mail. Accordingly, the Order Nisi should
provide for service on these new encumbrancers if they exist.
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The Order Nisi should be served as soon as possible after it has been issued because if it is
served near the expiration of the redemption period the Chambers Judge may subsequently
exercise a discretion to extend the redemption period or adjourn the final order application
simply because the person in question did not have the benefit of knowing what the redemption
period was until a very late date. This again can delay the proceedings to the prejudice of the
client. When the Order Nisi is granted and served be sure to report to your client and advise of
the redemption period with instructions for them to advise you immediately of any payments
which are received prior to the expiration of the redemption period.
In the event any monies are received after the issuance of the Order Nisi and prior to the
redemption period expiring, a Notice of Credit pursuant to Rule 438(4) of the Queen’s Bench
Rules should be served by ordinary registered mail on the party by whom the money is payable.
The Rule does not provide a form for a Notice of Credit but simply provides that notice by
registered mail on the party liable to pay the money setting out the specified sum to be credited
and the new amount claimed owing is sufficient. A precedent for a Notice of Credit appears in
the materials. If the Notice of Credit is proper, the Final Order can be granted without fixing a
new period of redemption although the party to whom the notice is given can apply under Rule
438(4) to have the Court fix the amount to be paid instead of the amount claimed in the Notice.
Further, Rule 438(6) provides that the Court can make the Final Order without fixing a new
period of redemption where payments are received after the redemption period has expired but
before the application for a Final Order (Canadian Life Assurance Company v. Stewart, [1943]
2 W.W.R. 251).
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It should be noted that the defendants can apply to enlarge or extend the redemption period, even
after its expiration, provided circumstances justifying same are shown. The extension of the
redemption period is discretionary and the following cases may be useful in determining whether
or not the discretion will be exercised:
• Farm Credit Corporation v. Trebick, [1981] Sask. D. 2770-02;
• Woodbine Developments Ltd. v. Tekarra Properties Ltd., [1981] Sask. D. 2770-01 (Q.B.);
• Co-operative Trust Co. of Canada v. J.B. Rasmussen Holdings Ltd., [1980] Sask. D.2770-01 (Q.B.);
• Canadian Imperial Bank of Commerce v. Clasky (1967) 60 W.W.R. 62 (Sask. C.A.); and
• Everson v. Hodgson, [1921] 1 W.W.R. 825. Once served, Proof of Service of the Order Nisi and the Notices of Credit with Proof of Service
should be filed at the Court House.
VII. FINAL ORDER FOR FORECLOSURE
Once the redemption period contained in the Order Nisi for Foreclosure has expired, an
application for the Final Order for Foreclosure can be made. The following documents,
precedents for which appear in the precedent section of the materials, must be filed:
• Notice of Motion or Memorandum to the Presiding Judge;
• Proof of Service of the Order Nisi (if not already filed);
• Affidavit of Default;
• Certificate of Solicitor;
• Affidavit of Search or Certificate of Local Registrar;
• Land Titles Registry Search Result;
• Writ Registry Search; and
• Draft Final Order (Form 56, Rule 438 of the Queen’s Bench Rules).
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Upon the Final Order being granted it must be issued and an affidavit as to the value of the
property and the lender’s postal address completed. A precedent for this affidavit appears in the
materials. Once the affidavit has been executed it should be forwarded with the original Final
Order to the Land Titles Registry for registration. The Final Order should also be served at this
time and is usually served on all appearing parties by service on their solicitors and all other
parties by ordinary registered mail. Once served, Proof of Service should be filed at the Court
House and upon title registering, a final report can be given to the client.
Whenever any Final Order for Foreclosure is obtained, the defendant can apply to the Court to
have same set aside. The setting aside of a Final Order for Foreclosure is discretionary,
however, the Court will generally grant an application with respect to same where the borrower
can pay the balance owing under the mortgage together with any other disbursements incurred
by the lender and the lender is in a position to reconvey the property. (See Canadian Imperial
Bank of Commerce v. Young, 1978, Sask. D.)
VIII. JUDICIAL SALE
In cases where the amount owing on the mortgage is greater than the value of the property and
judgment on the covenant is not prohibited, the Plaintiff lender may wish to apply for an Order
Nisi for Sale as opposed to an Order Nisi for Foreclosure in order to maintain a judgment for the
deficiency against the borrower. Aside from the question of the amount of equity, the lender
should also consider whether or not the borrower has any assets that would allow for the
collection of the deficiency judgment. Because proceeding by way of judicial sale is more costly
and takes longer than proceeding to foreclosure, the lender may be better off simply foreclosing
as opposed to being left with a deficiency judgment which will never be paid. Another
consideration to take into account is whether or not the mortgage is insured by Canada Mortgage
and Housing Corporation (“CMHC”). Generally, the mortgage insurance contract requires the
lender to obtain a clear title to the property through foreclosure before it can rely on the insurance
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policy for coverage, unless a judicial sale is forced by another party to the action. In these cases,
the lender is better off simply proceeding to foreclose the property and then recovering any
deficiency on the insurance, unless the insurer instructs the lender to proceed by way of judicial
sale. Instructions should be sought from the insurer in all cases where a deficiency judgment can
be recovered.
Generally, where the Plaintiff applies for a judicial sale, the information the Court will require is
the same as that in the materials filed in an application for an Order Nisi for Foreclosure. The
following documents ought to be filed:
• Notice of Motion or Memorandum to the Presiding Judge;
• Affidavit of Default;
• Certificate of Solicitor;
• Certificate of Local Registrar or Affidavit of Search;
• Land Titles Registry Search Result;
• Writ Registry Search; and
• Draft Order Nisi for Sale (Form 57, Rule 440 of the Queen’s Bench Rules).
Precedents for these documents appear in the precedent section of the materials.
While the Plaintiff may be applying for an Order Nisi for Foreclosure, a defendant may often
request a judicial sale of the property upon the return date of the Order Nisi application. Where
there is sufficient equity in the property to warrant same, the Court will usually grant such a
request, with the requesting party being obliged to pay a sum of money to the Sheriff as security
for the costs which the Sheriff incurs in advertising for the sale. In such cases, the parties will
often prepare a consent Order Nisi for Sale to submit to the Chambers Judge at a later date
although this need not be done as the Chambers Judge can simply make the order on the return
date.
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The following considerations are important for the solicitor acting for the lender when a
defendant asks for a judicial sale:
• Redemption Period: The redemption period set out in the Order Nisi for Sale is based on the same considerations as that previously discussed herein with respect to the Order Nisi for Foreclosure. It should, however, be remembered that the Sheriff must advertise the sale generally a month ahead of the sale date and needs some time to arrange for the necessary posters and newspaper advertisements to be prepared and printed. This can only take place after the redemption period expires so it has the effect of enlarging the redemption period actually set out in the Order Nisi for Sale.
• Reserve Bid: The Limitation of Civil Rights Act, R.S.S. 1978, c. L-16 ss. 5 states that with respect to a judicial sale of property the Judge shall not order the sale except subject to “such upset price or reserve bid as the Court or Judge deems proper having regard to all the circumstances.” The lawyer acting for the lender should ensure that the reserve bid is such that if the property is sold for the reserve bid, sufficient monies will be realized to pay the following:
(i) the Sheriff’s costs and poundage; (ii) the Plaintiff’s costs; (iii) unpaid property taxes; and (iv) the amount owing on the mortgage until the time the sale is confirmed and
the proceeds received. In setting the reserve bid one should also keep in mind the fact that properties generally sell for
considerably less (often ten percent to 30 percent) than the fair market value. The lawyer for the lender should ensure that the Order Nisi for Sale is properly served on all parties
once it has been granted and issued. This will often be looked after by the solicitor for the party
requesting the judicial sale, however, in such situations the lender’s solicitor should ensure that this
is in fact done. The lawyer for the Plaintiff should also ensure that the Sheriff’s security for costs
are paid because if they are not paid the Plaintiff can apply for the Final Order for Foreclosure. Assuming the borrower does not bring the arrears up to date within the redemption period, make
sure that the Sheriff receives your instructions to proceed with the sale. In addition to the
security for costs, all the Sheriff requires to proceed is a copy of the Order Nisi for Sale.
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If a successful judicial sale takes place, the sale must then be confirmed by the Court. The
application for confirmation can be brought by any of the parties to the action. Generally, all
that needs to be filed in such an application are the following documents, precedents for which
appear in the precedents section of the materials:
• Notice of Motion or Memorandum to the Presiding Judge;
• Affidavit of Sheriff or Selling Officer;
• Affidavit of Default;
• Certificate of Solicitor;
• Affidavit of Search or Certificate of Local Registrar;
• Land Titles Registry Search Result and Writ Registry Search; and
• Draft Order (Form 58, Rule 440 of the Queen’s Bench Rules).
The Queen’s Bench Rules provide the form of the Order Confirming Sale. Precedents for these
documents appear in the precedents section of the materials.
Should the sale be aborted (i.e., no bids) or should it not be confirmed within the time stated in
the Order Nisi for Sale, the Plaintiff should apply for a Final Order for Foreclosure. The same
materials as are used in an application for the Final Order for Foreclosure following an Order
Nisi for Foreclosure are used (with necessary amendments), however, an Affidavit from the
Sheriff or other Selling Officer advising of the particulars of the sale or lack thereof is required.
When the Plaintiff applies for the judicial sale for the purpose of maintaining a deficiency
judgment the property must sell. If it doesn’t the Plaintiff is generally then left with having to
apply for a Final Order for Foreclosure which, assuming s. 6 of the Limitation of Civil Rights
Act is applicable, cancels the mortgage debt in its entirety. In such cases the best way to ensure
that the property sells is to simply have the Plaintiff submit a bid in the amount of the reserve
bid and thus purchase the property should no other bids be received. Once the sale has been
confirmed and the proceeds paid to the Plaintiff and the deficiency calculated, same should be
put in a judgment roll so that the Local Registrar can calculate the amount outstanding
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including pre-judgment and post-judgment interest and costs. Consent to the formal judgment
should be obtained from the solicitors for the Defendants and where refused, the Registrar can
involve Rule 343 with respect to settling same (Co-operative Trust Company of Canada v.
O’Grady, [1983] Sask. D. 2771-03 and Co-operative Trust Company of Canada v. Sherstobitoff,
[1983] Sask. D. 2778-01).
In a situation where a lender is requesting a judicial sale with a view to ultimately realizing on a
deficiency, the lender should attempt to obtain a low upset price in the Order Nisi for Sale. The
Court will generally set the upset price at or near the forced sale value recognizing that obtaining
bids at actual fair market value usually doesn’t occur in judicial sale situations. Evidence of this
forced sale value must, however, be put before the Court. The main authority in Saskatchewan
regarding the setting of the upset price is the Court of Appeal’s decision in Saskatoon Credit
Union v. Goertz (1989), 73 Sask. R. 81.
IX. FORECLOSURES OF FARM LAND
In actions involving farmers and/or farm land, one must be mindful of the provisions of both the
Saskatchewan Farm Security Act and the federal Farm Debt Review Act. In effect the provincial
Act consolidated a number of existing statutes relating to actions against farmers with respect to
land and machinery, etc., and extended further protection to them. Because this Act consolidated
a considerable amount of existing statute law, the case law relating to the earlier statutes is useful
in interpreting it. Most of the procedure to foreclose a mortgage on farm land is found in Part 2
of the Act.
The federal Act essentially provides for a notice to be given to the Farm Debt Review Board and
the farmer before a secured creditor (i.e., a lender) can realize on its security. It also contains
provisions for the Board to grant stays against secured creditors’ realization actions or
proceedings.
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A. PRELIMINARY CONSIDERATIONS
As earlier mentioned in the materials, a lender must obtain an Order under s. 11 of the
Saskatchewan Farm Security Act before it can commence an action to foreclose a mortgage of
farm land.
Farm land is defined in the Act as “real property in Saskatchewan that is situated outside a city,
town, village, hamlet or resort village and that is used for farming”. Farming is defined in the
Act as including “livestock raising, poultry raising, dairying, tillage of the soil, bee keeping, fur
farming or any other activity undertaken to produce primary agricultural produce and animals”.
As a result, if the land is situated in a city, town, etc., it is not farm land within the meaning of
the Act regardless of how much farming activity may take place thereon and the mortgage can be
foreclosed following the usual procedure under the Land Contracts (Actions) Act.
Even though land may be classified as farm land, the Court of Appeal has ruled that in order for
a person to be classified as a farmer, that person must have a “realistic involvement in farming”
to obtain the protection afforded by the Act. In that particular case, (Christie v. Texas Industries,
[1986] 1 W.W.R. 532) a land development company purchased farm land near city limits and
rented it out to a farmer until it was in a position to develop same. The Court held that although
the land was farm land, the company was not a farmer and was not therefore entitled to the
protection of the Act. In another decision, the Court of Queen’s Bench ruled that although a
realistic involvement in farming was necessary for a borrower to be classified as a farmer, this
did not mean that all or even a substantial portion of the borrower’s income has to result from a
farming activity before protection under the Act would be afforded. As a result, it appears that
each case will depend on its own particular facts as to whether the borrower has a realistic
involvement in farming.
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B. NOTICE TO FARM LAND SECURITY BOARD AND FARM
DEBT REVIEW BOARD
When a lender intends to take action to realize on the security of a farmer, 15 business days
notice in the prescribed form must be served on both the farmer and the federal Farm Debt
Review Board pursuant to the provisions of the Farm Debt Review Act. A precedent for this
notice appears in the materials. The farmer can then apply to the Board for an automatic 30 day
stay of proceedings. This stay can be and is often extended by the Board for three further 30 day
periods. If the farmer does not apply to the Board for a stay of proceedings, the lender can
continue its proceedings to foreclose the mortgage, although the farmer may apply for the stay at
any time in the proceedings.
In addition to serving the federal Farm Debt Review Board, the lender must give the farmer and
the Farm Land Security Board 150 days notice of its intention to commence action on the
mortgage pursuant to the Saskatchewan Farm Security Act. A precedent for this Notice appears
in the materials. During the 150 day notice period, the Board conducts a review of the farmer’s
financial affairs and mandatory mediation occurs as well. Both the lender and the farmer are
bound to mediate “in good faith” and the mediator provides a certificate to the Farm Land
Security Board if either party does not do so. Failure to mediate in good faith on the part of the
lender can result in the proceedings being delayed by an additional 180 days and costs against
the lender. After mediation, the Board makes a report which is given to the parties and
ultimately filed in Court. The report of the Farm Land Security Board includes the Board’s
opinion as to whether or not the farmer is making “sincere and reasonable” efforts to meet his
obligations and whether he has a “reasonable possibility” of meeting his mortgage commitment.
It also includes a certificate to the effect that a party has not mediated in good faith (if
applicable), an opinion as to whether or not the land is a homestead and an explanation, if any, as
to where the farmer has allocated his financial resources during the period in which the mortgage
is in arrears.
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C. APPLICATION FOR SECTION 11 ORDER
Once the report of the Farm Land Security Board is completed, the lender can make an
application to the Court for an order allowing it to commence a foreclosure action. The onus is
then on the lender to show one of the following:
• that the farmer has no reasonable possibility of meeting his mortgage commitment; • that the farmer has not made sincere and reasonable efforts to meet his
obligations; or • that the farmer did not participate in the mediation process in good faith.
If the lender satisfies the Court of any of the foregoing, an order may be granted and a Statement
of Claim can be issued. If the lender is unsuccessful in its application, no further application can
be made for a period of one year. Precedents including the Notice of Motion and draft order are included in the materials. An Affidavit
of Default similar to those filed in the leave to commence stage of the proceedings under the Land
Contracts (Actions) Act must also be filed. This affidavit should, however, contain as much evidence
as possible to establish the criteria for the granting of the Order and should be supplemented by
affidavits of other persons having knowledge of relevant information that may impact on this issue. If the land or a portion thereof consists of the homestead of the farmer and the mortgage was entered
into prior to September 1, 1988, the Court must dismiss the application if the court is satisfied that the
farmer has been making sincere and reasonable efforts to meet his or her obligations, regardless of
whether or not the farmer has any reasonable possibility of meeting the obligations (s. 17). If the
application is dismissed with respect to the homestead, no further application can be made for three
years unless:
• the homestead ceases to be the farmer’s residence; • there has been a significant deterioration of the property through the farmer’s
neglect wilful act; or • the farmer is no longer making reasonable efforts to meet his or her obligations.
If the mortgage was entered into after September 1, 1988, it appears that the homestead is treated
no differently than other farm land except for the further protection discussed later herein.
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D. PROCEEDINGS SUBSEQUENT TO OBTAINING SECTION 11 ORDER
Once an order is obtained under s. 11, then the procedure to obtain a Final Order for Foreclosure
is the same as that in any other foreclosure action. A Statement of Claim is issued and served,
the application for an Order Nisi for Foreclosure is made and after the expiration of the
redemption period, the Final Order is obtained. The one exception to this relates to the home quarter protection sections discussed below.
E. HOME QUARTER PROTECTION
In addition to the homestead protection mentioned previously under s. 17 of the Act with respect
to pre-September 1, 1988 mortgages, Part II of the Act provides that although a Court may grant
a Final Order for Foreclosure of the homestead after the expiration of the redemption period
contained in the Order Nisi, the Final Order cannot be registered at the Land Titles Registry as to
the home quarter and the lender cannot enter into possession thereof for so long as the land
remains the farmer’s homestead or the homestead of their spouse and children if they should die.
If the land ceases to be the homestead of the farmer, the spouse, and/or children, the lender can
apply to the Court for a declaration to that effect which will then allow the Land Titles Registry
to register the Final Order for Foreclosure and the lender to take possession of the property. Notwithstanding this protection with respect to the home quarter, the Farm Land Security Board
can also make an order exempting the homestead from the protection afforded by this part of the
Act where it is in the best interests of the farmer to do so. If a Final Order has been obtained, it
is doubtful that it would ever be in the farmer’s interest to have such an order made. However,
this order can be obtained at the time the mortgage is granted. At that time, a joint application
by the lender and the farmer is made to the Board and the Board will generally grant the order as
a
matter of course if failing to do so means that the farmer will not get the loan. Lenders are urged
to get this order in all cases where doubt exists as to whether the land is farm land or not. It is
important to remember that the protection afforded under the Act cannot be waived by the farmer
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and even though this order can be obtained exempting the home quarter protection portion of the
Act, the remaining provisions of the Act continue to apply to the mortgage and the proceedings to
foreclose thereon.
Finally, it should be noted that pursuant to s. 44(12.3), the protection afforded to homesteads
under this part of the Act does not apply in relation to a mortgage given solely for the purpose of
purchasing same and/or for new construction or improvements on the homestead.
F. OTHER ISSUES
1. Guarantors
After September 1, 1988, any guarantee of a loan to a farmer in relation to farm land or other
assets used in farming is unenforceable against the guarantor unless the guarantor obtains
independent legal advice from a lawyer or Notary Public who then certifies that he or she has
examined the person entering into the guarantee obligation and that that person is aware of the
contents of the guarantee and understands it.
In addition, every guarantee shall specify the maximum financial obligation in a sum certain
(plus interest from the date of the demand on the guarantor) to which the guarantor is liable and
should it not so state, the guarantee shall be null and void. 2. Costs
Unlike a foreclosure of a residential mortgage wherein the lender can recover its costs on a
solicitor-client basis, the Saskatchewan Farm Security Act provides that a lender is limited to
receiving costs on a party and party basis according to the tariff of costs found in the Queen’s
Bench Rules. Costs on a party and party basis are generally significantly less than the solicitor-
client costs which the lender pays to its lawyer to conduct the action. As in the case of a
residential mortgage, inspection fees, collection costs, and life insurance premiums cannot be
added to the mortgage account.
32 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure
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X. MISCELLANEOUS
A. QUIT CLAIM
During or prior to the proceedings the borrower may decide that he or she no longer wants the
property and will transfer same directly to the lender in exchange for the lender forgiving the
indebtedness. When advising a lender as to whether or not to accept a transfer of the property in
this matter, ensure that there are no encumbrances subsequent to the client’s mortgage. The
client will not want title to the property subject to such encumbrances when title could be
obtained free and clear of same through foreclosure. If there are any subsequent encumbrances,
check with them as they may discharge their encumbrance on a voluntary basis where the
property is being foreclosed and there is no equity which would allow them to benefit by asking
for a judicial sale.
The lender generally cannot accept a transfer of the property when the mortgage is insured by
either CMHC or MICC unless the mortgage insurance company agrees to same. Accordingly,
the lender must seek permission from its mortgage insurance company with respect to accepting
a transfer of the property in those situations involving an insured mortgage.
A precedent for a Quit Claim Deed wherein the lender agrees to forgive the debt in consideration
of the transfer appears in the materials although a formal document is not necessary as the
agreement can simply be reflected in the transfer document.
Saskatchewan: Bar Admission Program 33 Debtor Creditor – Foreclosure
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B. WRIT OF POSSESSION
On occasion when a Final Order for Foreclosure is obtained or an order for possession granted,
persons residing on the property may refuse to give up possession to your client. In such cases, a
Writ of Possession can be prepared and forwarded to the Sheriff who will, pursuant to the Writ,
cause possession to be delivered to your client. Rule 371 of the Queen’s Bench Rules provides
as follows with respect to a Writ of Possession:
“A judgment or order that a party do recover possession of any land, or that any person therein named to deliver up possession of any land to some other person, may be enforced by Writ of Possession without any order for such purpose, after 15 days from the entry of the judgment or service of a copy of the order, which Writ shall be in Form 39 and shall be effective to enable the Sheriff to maintain the party entitled to possession in possession of the said land as against any party bound by the proceedings or any person or persons claiming through or under such party.”
A precedent completed pursuant to Form 39 appears in the materials.
C. COSTS
The law in Saskatchewan with respect to costs in a foreclosure action is that the lender is entitled
to its costs of the action on a solicitor-client basis as opposed to a party and party basis where the
mortgage contains a provision to that effect and where the lender has not unreasonably instituted,
carried on or resisted any proceedings (Central Mortgage and Housing Corporation v. Johnson,
[1971] 5 W.W.R. 163 (Sask. C.A.) and Fidelity Trust v. Hawrish, C.A. No. 8922, November 19,
1986 (unreported)). In cases where a lender is entitled to costs on a solicitor-client basis, same
must be requested in the Statement of Claim and included in the Order Nisi.
It should be kept in mind that the costs of the action do not include the costs of obtaining leave to
commence the action. Costs at the leave stage are in the discretion of the judge hearing the leave
application pursuant to s. 3(11) of the Land Contracts (Actions) Act and there are very few
circumstances which would give rise to costs being awarded to the lender at the leave stage
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of the proceedings. See Saskatoon Credit Union Limited v. McKay, [1988] Sask. D. 2768-09,
Canada Trustco Mortgage Co. v. Murray, [1992] T.W.L. 155 and CIBC v. Bergfeldt
(unreported) Q.B. No. 2805 of 1992, Judicial Centre of Saskatoon, Fiat of MacLeod, J. dated
September 30, 1992 and of Hrabinsky, J. dated October 21, 1992.
D. CONSENT FORECLOSURES
As mentioned in the materials with respect to the Application for Leave to Commence an Action,
leave under the Land Contracts (Actions) Act can be granted on a ex parte basis without the
necessity of a hearing where the borrowers have consented to same. In many cases where
borrowers are abandoning the property and where no personal judgment can be obtained against
them, they may wish to simply consent to the foreclosure proceedings. An alternative is
proceeding by way of Quit Claim and transfer of the property, however, this may not be possible
due to the existence of other encumbrances or the refusal of the mortgage insurer to grant its
permission. In such cases, it may be possible to proceed with a consent foreclosure action which
reduces the time necessary to obtain a Final Order for Foreclosure. By having the borrowers
execute an Acknowledgment and Consent to the proceedings, you can obtain leave on an ex
parte basis, substituted service of documents and a short redemption period. A precedent for a
Memorandum to the Presiding Judge, an Acknowledgment and Consent and a draft Order are
included in the materials. In addition to filing these documents, an Affidavit of Default,
Affidavit or Certificate of Search, Certificate of Solicitor and the Land Titles Registry Search
Result must be filed. The precedents for those are the same as contained in the section
concerning leave to commence action under the Land Contracts (Actions) Act.
Saskatchewan: Bar Admission Program 35 Debtor Creditor – Foreclosure
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E. CANCELLATION OF AGREEMENTS FOR SALE
Rule 440 of the Queen’s Bench Rules provides that the rules relating to foreclosure proceedings
applies mutatis mutandis to actions by vendors for specific performance, cancellation of
agreements for sale, or for sale or possession of the land. The following forms relating to
cancellation actions appear in the Rules:
• Statement of Claim;
• Order Nisi for Cancellation; and
• Final Order for Cancellation.
The foreclosure precedents for other supporting documentation can simply be modified to reflect
a cancellation action instead of a foreclosure action.
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
PRECEDENTS
Saskatchewan: Bar Admission Program P - 1 Debtor Creditor – Foreclosure Precedents – Sample Checklists
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
FILE INFORMATION
1. Client:
Telephone #: Fax #:
Mortgage #:
Contact Person:
Title:
Affidavits By:
Title:
Address of Security:
2. Mortgagor(s):
Address:
Solicitor:
3. Judicial Centre:
4. Assumption Agreements:
Extension Agreements:
Guarantor(s):
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FORECLOSURE CHECKLIST
I. PRELIMINARY
1. Demand Letter Sent:
2. Advise of Response:
3. Request Documents and Information:
4. (a) Farm Debt Review Act:
(b) Farm Security Act:
(c) Land Contracts (Actions) Act:
II. NOTICE OF INTENTION
1. Search Title:
2. Prepare and serve on Provincial Mediation Board:
3. Prepare Affidavit of Service:
4. Report to Client:
III. LEAVE TO COMMENCE
1. (a) Land Titles Registry Search Result:
(b) Request updated arrears figures:
2. Prepare Leave documents and forward to client for execution:
3. File Notice with Proof of Service and Leave materials:
4. Appointment granted:
5. Appointment issued:
6. Forward Appointment and Default Affidavit for service:
Saskatchewan: Bar Admission Program P - 3 Debtor Creditor – Foreclosure Precedents – Sample Checklists
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7. Date served:
8. File Proof of Service:
9. (a) Prepare Updating Affidavit:
(b) Updated Land Titles Registry Search Result:
10. File Updating Affidavit and Land Titles Registry Search Result:
11. Chambers Appearance:
(a) Adjourned to:
(b) Adjourned to:
(c) Adjourned to:
12. Leave granted:
IV. STATEMENT OF CLAIM
1. (a) Title Search and Writ Registry Search:
(b) Confirm or request updated figures:
2. Prepare and issue Statement of Claim:
3. Forward Claim to Process Server:
4. Report to client:
5. Date Statement of Claim served:
6. Prepare Affidavit of Service:
7. File Proof of Service and note for default:
8. Demands for Notice by:
(a) Solicitor:
(b) Solicitor:
(c) Solicitor:
(d) Solicitor:
P - 4 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Sample Checklists
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V. ORDER NISI
1. (a) Land Titles Registry Search Result and Writ Registry Search
(2) Request updated figures:
2. Prepare documents and forward to client for execution:
3. Serve documents on appearing parties:
4. File documents with Proof of Service:
5. Chambers Appearance:
(a) Adjourned to:
(b) Adjourned to:
6. Order Nisi granted:
7. Order Nisi issued:
8. Report to client:
9. Forward Order Nisi for service:
10. Date last party served:
11. Prepare Affidavits of Service: VI. NOTICE OF CREDIT
1. Prepare and serve Notice:
2. Prepare Affidavit of Service:
3. File Proof of Service: VII. FINAL ORDER
1. (a) Land Titles Registry Search Result and Writ Registry Search:
(b) Request updated figures:
(c) Search court file for money paid in:
Saskatchewan: Bar Admission Program P - 5 Debtor Creditor – Foreclosure Precedents – Sample Checklists
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2. Prepare documents and forward to client for execution:
3. Serve documents on appearing parties:
4. File documents with Proof of Service:
5. Chambers Appearance:
(a) Adjourned to:
(b) Adjourned to:
6. Final Order granted:
7. Final Order issued:
8. Prepare Affidavit of Value and Postal Address and submit to Land Titles Registry with original Final Order for Foreclosure:
9. Serve Final Order:
10. File Proof of Service:
11. Report to client:
12. Forward new title to client:
P - 6 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Sample Checklists
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MORTGAGE FORECLOSURE CHECKLIST
1. PRELIMINARY:
a. Instructions received b. Check for conflict of interest c. Limitation Diary notes for commencement of action d. Demand letter sent. Deadline: Extension: 2. INFORMATION:
a. Do you have all the security taken? (i.e., chattels, other land) b. Ascertain if property vacant c. Consider Receiver d. Guarantees? Is demand required? Guarantors to be joined? e. Search of Company f. Title search g. Review of other encumbrances h. Tax search i. Updated statement of arrears (and accelerated balance where mortgagor is unmatured) obtained j. Last known address of mortgagor(s) k. Determine judicial centre where you must commence action l. Is this a purchase price mortgage? m. Is homestead land involved? n. Maturity date of mortgage o. Last payment date and amount p. Value of land q. Waiver of the Land Contracts (Actions) Act r. Is land outside urban areas (may be farm land)? s. Waiver of the Limitation of Civil Rights Act t. Are solicitor and client costs allowed in the mortgage?
Saskatchewan: Bar Admission Program P - 7 Debtor Creditor – Foreclosure Precedents – Sample Checklists
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3(a) LEAVE OF THE COURT (Land Contracts (Actions) Act / Limitation of Civil Rights Act):
Applies to corporations who have not waived these Acts and to individuals where the land involved is not farm land. Where a corporation has waived these Acts you can commence action without obtaining leave of the Court. Where farm land is involved you are subject to the Saskatchewan Farm Security Act. a. Send Notice to Provincial Mediation Board by registered mail b. Prepare Affidavit of Service of Notice of Intention to Provincial Mediation Board c. After 30 days, prepare ex parte application for appointment d. Order Land Titles Registry Search Result, Writ Registry Search and Certified Copy of Mortgage e. Prepare and file:
- Memo to Presiding Judge - Affidavit of Mortgagee - Land Titles Registry Search Result - Writ Registry Search - Certified Copy of Mortgage - Proof of Service on Provincial Mediation Board - Draft Appointment
f. When preparing the draft Appointment and inserting an appointment date (which is a Chambers date), make sure there is time for you to serve the mortgagor(s) and leave 15 clear days between the appointment date and the service date g. Issue Appointment and serve Appointment and Affidavit of Mortgage on Mortgagor(s) h. Appear on return date for appointment and request leave to commence (b) LEAVE OF THE COURT (Saskatchewan Farm Security Act):
Applies to individuals or corporations where farm land is involved. a. Serve Notice under the Farm Debt Review Act on:
- mortgagor(s) - Farm Debt Review Board
b. Serve Notice under the Saskatchewan Farm Security Act on: - mortgagor(s) - Farm Land Security Board
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c. After Saskatchewan Farm Security Act waiting period (maximum of 150 days) and Farm Debt Review Act waiting period (21 days), prepare motion for leave to commence under Saskatchewan Farm Security Act (note that under the Farm Debt Review Act a farmer could apply for a stay of proceedings for up to a total of 120 days and this application for a stay could occur at any time)
d. File Affidavits of Service of Notices under Saskatchewan Farm Security Act and Farm Debt Review Act at the appropriate Court House and request that a Q.B. No. or Q.B. Nos. be assigned
e. Request Farm Land Security Board to prepare and file their report. f. When you obtain your Q.B. No.(s) advise the Board so they can file
their report at the appropriate Court House under the appropriate Q.B. No.(s)
g. Once report is filed, obtain Land Titles Registry Search Result, Writ Registry Search and Certified Copy of Mortgage and prepare Notice of Motion, Affidavit of Mortgagee and draft Order.
h. Serve Notice of Motion on mortgagor(s) i. Upon service of the Notice of Motion, file the following:
- Notice of Motion with Proof of Service - Affidavit of Mortgagee - Land Titles Registry Search Result - Writ Registry Search - Certified Copy of Mortgage - Notice under Saskatchewan Farm Security Act with Proof of Service - Notice under Farm Debt Review Act with Proof of Service - Draft Order
j. Appear on return date and request leave to commence action. 4. COMMENCEMENT OF ACTION:
a. Search Title and obtain Writ Registry Search just before preparing and issuing Statement of Claim to determine appropriate defendants
b. Prepare and issue Statement of Claim c. Limitation diary - for service of Statement of Claim d. Limitation diary for next step e. Serve Statement of Claim on all necessary parties
Saskatchewan: Bar Admission Program P - 9 Debtor Creditor – Foreclosure Precedents – Sample Checklists
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f. Note defendants for default (where a defendant defends, this becomes a
normal litigation matter and you cannot obtain an Order Nisi for Foreclosure or for Sale without a trial of the issue. Where a defendant files a Demand for Notice, you must proceed from now on by way of Motion instead of ex parte and serve the defendants who gave you Demand for Notice with any Notices of Motion or other court proceedings
5. ORDER NISI FOR FORECLOSURE / ORDER NISI FOR JUDICIAL SALE:
a. Order Writ Registry Search and Land Titles Registry Search Result. Review Writ Registry Search and Land Titles Registry Search Result. If there are any new encumbrance(s) (other than tax liens) you must proceed by Notice of Motion and serve the new encumbrancer(s).
b. Prepare Affidavit of Mortgagee, draft Order, Affidavit of Solicitor and Affidavit of Search.
c. Prepare Memo to Presiding Judge (ex parte application) or Notice of Motion (Demand for Notice has been served by one or more defendants).
d. Serve Notice of Motion where applicable. e. File:
- Notice of Motion with Proof of Service or Memo to Presiding Judge - Affidavit of Mortgagee - Land Titles Registry Search Result - Writ Registry Search - Affidavit of Search - Affidavit of Solicitor - Draft Order
f Where application is by Notice of Motion, appear on return date and request Order Nisi for Foreclosure or Judicial Sale
g. Where application was ex parte, check with Local Registrar to see if Order was granted.
h. Issue Order and serve all defendants
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6. FINAL ORDER FOR FORECLOSURE:
a. Obtain Writ Registry Search and Land Titles Registry Search Result. Review Writ Registry Search and Land Titles Registry Search Result. If there are any new encumbrance(s) (other than tax liens) you must proceed by Notice of Motion and serve the new encumbrancers
b. Prepare: - Notice of Motion or Memo to Presiding Judge - Affidavit of Mortgagee (where farm land and Saskatchewan
Farm Security Act are involved, you must apportion the mortgage debt between homestead lands and other lands)
- Affidavit of Search - Affidavit of Solicitor - Draft Order
c. Serve Notice of Motion where applicable d. File:
- Notice of Motion with Proof of Service or Memo to Presiding Judge - Order Nisi for Foreclosure with Proof of Service on all defendants - Affidavit of Mortgagee - Land Titles Registry Search Result - Writ Registry Search - Affidavit of Search - Affidavit of Solicitor - Draft Order (where farm land and Saskatchewan Farm Security
Act are involved, the Order should reflect your proposed apportionment of debt)
e. Where application is by Motion, appear on the return date and request Final Order of Foreclosure
f. Where application is ex parte, check with the Registrar to see if Order has been granted
g. Issue Order and serve on all defendants h. Register Duplicate Original Final Order for Foreclosure with appropriate
Land Titles Registry together with Affidavit of Value and obtain new Land Titles Registry Search Result in the name of mortgagee
i. File Final Order for Foreclosure with Proof of Service on all defendants.
Saskatchewan: Bar Admission Program P - 11 Debtor Creditor – Foreclosure Precedents – Sample Checklists
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7. CONDUCT OF JUDICIAL SALE:
a. Determine status of land taxes b. Prepare Notices of Judicial Sale for posting and for advertising c. Post Notices and instruct local newspaper about advertising d. Prepare Affidavit of Posting and Affidavit of Advertising e. Appear on sale date and conduct judicial sale in accordance with the Order. 8. ORDER CONFIRMING SALE:
a. Obtain Writ Registry Search and Land Titles Registry Search Result. Review Writ Registry Search and Land Titles Registry Search Result. If there are any new encumbrance(s) (other than tax liens) you must proceed by Notice of Motion and serve the new encumbrancer(s).
b. Prepare: - Notice of Motion or Memo to Presiding Judge - Affidavit of Mortgagee - Affidavit of Search - Affidavit of Solicitor - Draft Order
c. Serve Notice of Motion where applicable d. File:
- Notice of Motion with Proof of Service or Memo to Presiding Judge - Proof of Service of Order Nisi for Judicial Sale on all defendants - Affidavit of Posting - Affidavit of Advertising - Affidavit of Mortgagee - Affidavit of Solicitor - Affidavit of Search - Writ Registry Search - Land Title Registry Search Result - Draft Order
e. Where application is by Motion, appear on return date and request Order confirming sale
f. Where application is ex parte, check with Local Registrar to see if Order has been granted.
g. Issue Order and serve all defendants h. Register duplicate original Order Confirming Sale at Land Titles
Registry together with Affidavit of Value and obtain new Land Titles Registry Search Result in name of purchaser
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Saskatchewan: Bar Admission Program P - 13 Debtor Creditor – Foreclosure Precedents – Notice of Intention with Affidavit of Service
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
NOTICE OF INTENTION
TO: Provincial Mediation Board
Regina, Saskatchewan PROPOSED PLAINTIFF: BIG BAD BANK PROPOSED DEFENDANT(S): IMA DEBTOR LAST KNOWN ADDRESS: 2121 Cantpay Lane
Saskatoon, Saskatchewan 4G7 T5Y
MORTGAGE PARTICULARS: 1. Arrears as of June 1, 2000: $5,000 2. Instrument Number: 88S77777 3. Legal Description: Lot _______,
Block ________, in the City of Saskatoon, in the Province of Saskatchewan, Plan No. _________
MINERALS EXCEPTED.
TAKE NOTICE that upon expiration of 30 clear days after the service of this Notice upon
you, the Proposed Plaintiff intends to apply ex parte to the Presiding Judge of the Court of Queen’s
Bench for an Appointment to hear an application for leave to commence an action as defined in the
Land Contracts (Actions) Act, R.S.S. 1978, Chapter L-3, against the Proposed Defendant(s) in
relation to the mortgage above noted for a) foreclosure of the equity of redemption, b) sale or
possession of the mortgaged premises, and c) the recovery of any monies payable under the
mortgage.
P - 14 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Notice of Intention with Affidavit of Service
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THIS NOTICE is served upon you pursuant to the requirements of subsection 3(2) of the
Land Contracts (Actions) Act, R.S.S. 1978, Chapter L-3.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: __________________________________ Solicitors for the Proposed Plaintiff
This Notice of Intention was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 – 128 Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 15 Debtor Creditor – Foreclosure Precedents – Notice of Intention with Affidavit of Service
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
IN THE MATTER OF A PROPOSED ACTION BETWEEN:
BIG BAND BANK PROPOSED PLAINTIFF
AND:
IMA DEBTOR PROPOSED DEFENDANT(S)
AFFIDAVIT OF SERVICE
I, ___________________, of the City of Saskatoon, in the Province of Saskatchewan, Legal
Secretary, MAKE OATH AND SAY:
1. THAT I did on the _____ day of __________, 2000, serve the Provincial Mediation Board
with a true copy of the Notice of Intention a copy of which is hereunto annexed and marked as
Exhibit "A" to this my Affidavit having enclosed such copy in an envelope addressed to:
Provincial Mediation Board 5th Floor, 2103 - 11th Avenue Regina, Saskatchewan S4P 3Z8
and posted the same by registered mail at Sub Post Office No. 3, Saskatoon, Saskatchewan.
P - 16 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Notice of Intention with Affidavit of Service
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2. THAT hereunto annexed and marked as Exhibit "B" to this my Affidavit is the receipt from
the postmaster at Saskatoon for such registered letter.
3. THAT to effect such service, I necessarily travelled nil kilometres.
SWORN BEFORE ME at the City ) of Saskatoon, in the Province of ) Saskatchewan, this _____ day of ) __________, A.D. 2000. ) _____________________________
) _____________________________ ) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My Commission expires _____________. or Being a Solicitor. This Affidavit of Service was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 17 Debtor Creditor – Foreclosure Precedents - Leave to Commence, Memorandum to the Presiding Judge in Chambers
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. NO. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
IN THE MATTER OF A PROPOSED ACTION BETWEEN:
BIG BAD BANK PROPOSED PLAINTIFF
AND:
IMA DEBTOR PROPOSED DEFENDANT(S)
MEMORANDUM TO THE PRESIDING JUDGE IN CHAMBERS
THIS IS AN EX PARTE APPLICATION for an appointment setting the time and place for
the hearing of an application pursuant to the Land Contracts (Actions) Act for leave to commence an
action as defined therein.
FILED in support hereof are the following:
1. Notice of Intention to Provincial Mediation Board with Proof of Service.
2. Affidavit of Default.
3. Certificate of Solicitor.
4. Land Titles Registry Search Result.
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5. Draft Appointment.
6. Such further and other material as counsel may deem advisable and this Honourable Court may allow.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this _____day of
_______________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: _________________________________ Solicitors for the Proposed Plaintiff
This Memorandum to the Presiding Judge was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 19 Debtor Creditor – Foreclosure Precedents - Leave to Commence, Affidavit of Default
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Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
IN THE MATTER OF A PROPOSED ACTION BETWEEN:
BIG BAD BANK PROPOSED PLAINTIFF
AND:
IMA DEBTOR PROPOSED DEFENDANT(S)
AFFIDAVIT OF JOHN DOE
I, JOHN DOE, of the City of Saskatoon, in the Province of Saskatchewan, (Position), MAKE
OATH AND SAY AS FOLLOWS:
1. THAT I am the (Position) of the Proposed Plaintiff in connection with the mortgage sued on
herein and as such have personal knowledge of the matters hereinafter deposed to except where
otherwise stated.
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2. THAT photostatic copies of the following documents are attached as Exhibits to this my
Affidavit:
(A) Mortgage.
(B)* Most recent renewal agreement.
(C)* Assumption agreement.
*(delete if not applicable)
3. THAT default has occurred under the terms of the said mortgage and the sum of $50,000 is
owing thereunder as of the 1st day of June, A.D. 2000, of which the sum of $5,000.00 is in arrears.
OR
3. THAT default has occurred under the terms of the said mortgage and the sum of $50,000 is
owing and in arrears thereunder as of the 1st day of June, A.D. 2000, the mortgage having matured.
4. THAT no payment has been made to the Proposed Plaintiff on account of the mortgage sued
on herein since January 1, 2000.
OR
4. THAT no payment has been made to the Proposed Plaintiff on account of the mortgage sued
on herein since January 1, 2000 excepting for rents collected from the tenants of the mortgaged
premises and applied on account of the mortgage.
5. THAT based on a review of the original appraisal and my experience with the Proposed
Plaintiff in foreclosure proceedings, the mortgaged land and premises is in my opinion of the value
of $60,000.
OR
5. THAT based on the appraisal attached hereto and marked as Exhibit ___ the mortgaged land
and premises is in my opinion of the value of $60,000.
Saskatchewan: Bar Admission Program P - 21 Debtor – Creditor – Foreclosure – Precedents Leave to Commence
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
6. THAT I make this Affidavit in support of an application for leave to commence an action for:
(a) foreclosure of the equity of redemption of the Defendant(s);
(b) sale or possession of the mortgaged premises, and/or;
(c) and/or the recovery of any monies payable under the said mortgage including but
not limited to solicitor-client costs of the within application and action.
SWORN BEFORE ME at the City ) of Saskatoon, in the Province of ) Saskatchewan, this _____ day of ) ____________, A.D. 2000. ) _____________________________
) JOHN DOE )
_____________________________ ) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My Commission expires _____________. or Being a Solicitor. This Affidavit was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
P - 22 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Leave to Commence, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
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Saskatchewan: Bar Admission Program P - 23 Debtor – Creditor – Foreclosure Precedents - Leave to Commence, Certificate of Solicitor
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
IN THE MATTER OF A PROPOSED ACTION BETWEEN:
BIG BAD BANK PROPOSED PLAINTIFF
AND:
IMA DEBTOR PROPOSED DEFENDANT(S)
CERTIFICATE OF SOLICITOR
I, GRANT RICHARDS, certify that no money has been paid to the office of RICHARDS,
GRANT & ALLEN, to the credit of the mortgage which is the subject of these proceedings to the
date hereof.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
_______________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: _____________________________________ Solicitors for the Proposed Plaintiff, BIG BAD BANK
P - 24 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Leave to Commence, Certificate of Solicitor
Revised May 2003 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
This Certificate of Solicitor was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 25 Debtor – Creditor – Foreclosure Precedents - Leave to Commence, Appointment for Application for Leave to Commence an Action
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
IN THE MATTER OF A PROPOSED ACTION BETWEEN:
BIG BAD BANK PROPOSED PLAINTIFF
AND:
IMA DEBTOR, PROPOSED DEFENDANT(S)
BEFORE THE HONOURABLE ) ON ________DAY, THE
JUSTICE ________________________ ) ________ DAY OF __________,
IN CHAMBERS ) A.D. 2000.
APPOINTMENT FOR APPLICATION FOR LEAVE TO COMMENCE AN ACTION
UPON the application of counsel for the Proposed Plaintiff and upon reading the Affidavit of
Default, a copy of which is to be served herewith;
P - 26 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Leave to Commence, Appointment for Application for Leave to Commence an Action
Revised May 2003 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
The _____ day of _____________, A.D. 2000, at ten o'clock in the forenoon at the Court
House, Saskatoon, Saskatchewan, is appointed as the time and place for the hearing of an application
by the Proposed Plaintiff for leave to commence action for:
a) foreclosure of Mortgage No. 88S77777;
b) sale or possession of the mortgaged premises;
c) and/or the recovery of any moneys payable under the said mortgage including but not limited to solicitor-client costs of the within application and action.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this _____ day of
________________, A.D. 2000.
_______________________________ Deputy Local Registrar
This Appointment for Leave to Commence an Action was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, Sk s7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 27 Debtor Creditor – Foreclosure Precedents - Statement of Claim
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
STATEMENT OF CLAIM NOTICE TO DEFENDANT (1) The plaintiffs may enter judgment in accordance with this Statement of Claim or such judgment as may be granted pursuant to the Rules of Court unless
within 20 days if you were served in Saskatchewan within 30 days if you were served elsewhere in Canada and the United States of America within 40 days if you were served outside Canada and the United States of America
(excluding the day of service) you serve a Statement of Defence on the plaintiffs and file a copy thereof in the office of the local registrar of the Court for the judicial centre above-named.
(2) In many cases a defendant may have the trial of the action held at a judicial centre other than the one at which the Statement of Claim is issued. Every defendant should consult his lawyer as to his rights.
(3) This Statement of Claim is to be served within 6 months from the date on which it is issued.
(4) This Statement of Claim is issued at the above-named judicial centre the ____ day of __________, A.D. 2000.
_______________________ Deputy Local Registrar
P - 28 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Statement of Claim
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
CLAIM
1. The Plaintiff's claim is under a mortgage dated the 1st day of June, 1988, made by Joe Blow,
in favour of Mickey Mouse Trust, and registered in the Land Titles Office for the Saskatoon Land
Registration District, on the 8th day of June, 1988, as Instrument No. 88S77777.
2. The mortgage has been duly transferred by the Mortgagee to the Plaintiff by a transfer dated
the _____ day of __________, 19___. (If applicable)
3. The mortgage has been duly assumed by the Defendant, Ima Debtor, by an instrument in
writing dated the _____ day of __________ , 19__. (If applicable)
4. The Plaintiff and the Defendant(s), ____________________, (or as the case may be),
entered into an extension agreement with respect to the mortgage, which agreement is dated
_____________, 19__ . (If applicable)
5. The following is a description of the mortgaged land namely:
(Insert legal description)
6. The term of the mortgage has expired and the full amount owing is now due. Default has
been made and the amount owing as at the 1st day of June, 2000, is $50,000 together with interest
thereon at a rate of ___ per cent per annum from that date to date of payment. (Use this where the
mortgage has matured)
OR
6. Default has been made under the mortgage, and the following are the particulars of the
amount owing as at the 1st day of June, 2000, including all disbursements made pursuant to the
provision of the mortgage:
Arrears of principal, interest and taxes: $ • Accelerated principal: $ • _______
Total including accelerated principal: $ •
Saskatchewan: Bar Admission Program P - 29 Debtor Creditor – Foreclosure Precedents - Statement of Claim
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
7. On the 1st day of June, 2000, there were instalments owing under the mortgage totalling
$__________, being ___ months instalments at $_________ per month. (Delete this paragraph if
the mortgage has matured)
8. The Defendant, ______________, covenanted in the mortgage to pay the monies owing
under the mortgage. The Limitation of Civil Rights Act does not preclude the Plaintiff from suing on
the covenant because (the mortgage does not secure the purchase price of the mortgaged land or the
Defendant ___________ is a corporation and has waived the Act pursuant to section 40 thereof.)
(Delete this paragraph if no judgment on the covenant is sought)
9. The Defendant, _____________, appears from the records of the proper Land Titles Office to
be interested in the equity of redemption, subject to the rights of the Plaintiff.
10. Leave to commence this action was granted under the provisions of the Land Contracts
(Actions) Act on ______________, 2000, and the nature of the remedy which by the leave granted is
permitted to be sought in this action is:
a) foreclosure of Mortgage No. 88S77777;
b) sale or possession of the mortgaged premises;
c) and/or the recovery of any monies payable under the said mortgage. OR
10. No leave to commence this action was required under the Land Contracts (Actions) Act
because the Defendant, ______________, is a corporation and has waived the said Act pursuant to
section 5 thereof.
11. The Plaintiff claims to be entitled to costs on a solicitor-client basis because the mortgage
contains a covenant for payment of same.
P - 30 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Statement of Claim
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
12. The Plaintiff claims the following relief, namely:
(a) judgment against the Defendant, __________, for the aforesaid sum of $_______ together with interest on the sum of $________ at the rate of _____ per centum per annum from the ____ day of __________ , 2000, and the costs of this action on a solicitor-client basis; or
(b) the costs of this action on a solicitor-client basis; (use this where no judgment is sought on the covenant)
(c) foreclosure of the mortgage;
(d) sale of the mortgaged land;
(e) possession or immediate possession of the mortgaged land;
(f) the appointment of a receiver of the rents, issues and profits of the mortgaged land; and
(g) such further and other relief as this Honourable Court may deem just. DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
__________, A.D. 2000.
CUELENAERE, KENDALL, KATZMAN & RICHARDS
Per: ___________________________ Solicitors for the Plaintiff
To the Defendants: Take notice that you are entitled at any time, by notice in writing, to demand from the
Plaintiff's Solicitors full particulars of the amount claimed by the Plaintiff, and production for your inspection of the mortgage, and any other documents sued upon.
This Statement of Claim was delivered by:
CUELENAERE, KENDALL, KATZMAN & RICHARDS Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8
Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 31 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Notice of Motion
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
NOTICE OF MOTION
TAKE NOTICE that an application will be made to the Presiding Judge in Chambers at the
Court House, at Saskatoon, in the Province of Saskatchewan, on June 1, 2000, at ten o’clock in the
forenoon or so soon thereafter as counsel can be heard on behalf of the Plaintiff for an Order Nisi for
Foreclosure of the mortgage referred to in the Statement of Claim herein on the terms of the draft
Order Nisi for Foreclosure filed herein on the grounds that the Defendants have been noted for
default of defence.
AND FURTHER TAKE NOTICE that in support of the said application will be read the
following:
(a) Proof of Service of the Statement of Claim.
(b) Land Titles Registry Search Result and Writ Registry Search.
(c) Affidavit of Default.
(d) Certificate of Solicitor.
P - 32 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Notice of Motion
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
(e) Certificate of Search or Affidavit of Search.
(f) Notice of Motion with Proof of Service.
(g) Draft Order Nisi for Foreclosure.
(h) Such further and other material as counsel may advise and this Honourable Court may allow.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this _____ day of
____________, A.D. 2000.
RICHARDS, GRANT & ALLEN Per: ________________________ Solicitors for the Plaintiff TO: IMA DEBTOR and HEAVY DUTY FINANCE CO. This Notice of Motion was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for Service: same as above Lawyer in Charge: Telephone Number: Facsimile Number: File Number:
Saskatchewan: Bar Admission Program P - 33 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Memorandum to the Presiding Judge in Chambers
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
MEMORANDUM TO THE PRESIDING JUDGE IN CHAMBERS
THIS IS AN EX PARTE APPLICATION for an Order Nisi for Foreclosure in relation to the
mortgage sued on herein on the terms of the draft order filed herewith on the grounds that the
Defendants have been noted for default of defence.
FILED in support hereof are the following:
(a) Proof of Service of the Statement of Claim.
(b) Land Titles Registry Search Result and Writ Registry Search.
(c) Affidavit of Default.
(d) Certificate of Solicitor.
P - 34 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Memorandum to the Presiding Judge in Chambers
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
(e) Certificate of Search or Affidavit of Search.
(f) Draft Order Nisi for Foreclosure.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this _____ day of
____________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: ____________________________ Solicitors for the Plaintiff
This Memorandum to the Presiding Judge was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 35 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
AFFIDAVIT OF JOHN DOE
I, JOHN DOE, of the City of Saskatoon, in the Province of Saskatchewan, (Position), MAKE
OATH AND SAY AS FOLLOWS:
1. THAT I am the (Position) of the Plaintiff in connection with the mortgage sued on herein
and as such have personal knowledge of the matters and facts hereinafter deposed to except where
otherwise stated and where so stated I verily believe the same to be true.
2. THAT I am advised by Grant A. Richards, Barrister and Solicitor, and verily believe the
same to be true that true copies of the following documentation have previously been filed in court
in the within action:
(a) Mortgage.
(b) Most recent renewal agreement. (If applicable)
(c) Assumption agreement. (If applicable)
P - 36 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
3. THAT default has occurred under the terms of the said mortgage and the sum of $50,000 is
owing thereunder as of the 1st day of June, A.D. 2000 of which the sum of $5,000 is in arrears. (Use
if mortgage has not matured)
OR
3. THAT default has occurred under the terms of the said mortgage and the sum of $50,000 is
owing and in arrears thereunder as of the 1st day of June, 2000, the mortgage having matured. (Use
if mortgage has matured only).
4. THAT no payment has been made to the Plaintiff on account of the mortgage sued on herein
since January 1, 2000.
5. THAT based on a review of the original appraisal and my experience with the Plaintiff in
foreclosure proceedings, the mortgaged land and premises is in my opinion of the value of $60,000.
OR
5. THAT based on the appraisal attached hereto and marked as Exhibit “A” to this my affidavit,
the mortgaged land and premises is in my opinion of the value of $60,000. (If appraisal previously
filed, refer to previous filing instead of attaching as an Exhibit)
6. THAT I make this affidavit in support of an application to this Honourable Court for an
Order Nisi for Foreclosure of the said mortgage.
SWORN BEFORE ME at the ) City of Saskatoon, in the ) Province of Saskatchewan, ) this ___ day of ________, A.D. 2000.) ______________________ ) JOHN DOE ) _____________________________ ) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My Commission expires ____________. or Being a Solicitor.
Saskatchewan: Bar Admission Program P - 37 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
This Affidavit was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
P - 38 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
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Saskatchewan: Bar Admission Program P - 39 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Certificate of Solicitor
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
CERTIFICATE OF SOLICITOR
I, GRANT A. RICHARDS, certify that no money has been paid to the office of RICHARDS,
GRANT & ALLEN, to the credit of this action to the date hereof.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this _____ day of
______________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: _______________________ Solicitors for the Plaintiff
This Certificate of Solicitor was delivered by:
RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8
Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
P - 40 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Certificate of Solicitor
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
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Saskatchewan: Bar Admission Program P - 41 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Affidavit of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
AFFIDAVIT OF SEARCH
I, I. RUNFAST, of the City of Saskatoon, in the Province of Saskatchewan, Court Runner,
MAKE OATH AND SAY AS FOLLOWS:
1. THAT I did on the ____ day of __________, A.D. 2000, personally search the records of the
office of the Local Registrar at the within Judicial Centre to determine whether or not any monies
had been paid into court to the credit of this action. As a result of such search, I ascertained that no
monies have been paid into court to the credit of this action.
SWORN BEFORE ME at the ) City of Saskatoon, in the ) Province of Saskatchewan, ) this ___ day of _______, A.D. 2000. ) ________________________ ) I. RUNFAST ) _____________________________ ) Being an Officer of the Court
P - 42 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Affidavit of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
This Affidavit of Search was delivered by:
RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 43 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Certificate of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
CERTIFICATE OF SEARCH
I, (NAME OF REGISTRAR), certify that I have searched the court record and no money has
been paid into court to the credit of this action to the date hereof.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
____________, A.D. 2000.
_____________________ Local Registrar
P - 44 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Certificate of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
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Saskatchewan: Bar Admission Program P - 45 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Actual Order Nisi for Foreclosure
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
BEFORE THE HONOURABLE ) ON _____ DAY, THE
JUSTICE ____________________ ) DAY OF ____________,
IN CHAMBERS ) A.D. 2000.
ORDER NISI FOR FORECLOSURE
UPON APPLICATION of counsel for the Plaintiff, upon hearing read the Statement of
Claim with proof(s) of service thereof, the Affidavit of Default, Affidavit of Search, the Land Titles
Registry Search Result, Writ Registry Search and the Certificate of the Plaintiff’s solicitor, all filed:
IT IS HEREBY DECREED AND ADJUDGED that the full amount due for principal and
interest under the mortgage between Joe Blow, as mortgagor, and Mickey Mouse Trust, as
mortgagee, dated the 1st day of June, 1988, and registered in the Land Titles Office for the Saskatoon
Land Registration District on the 8th day of June, 1988, as Instrument No. 88 S 77777,
P - 46 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Actual Order Nisi for Foreclosure
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
which mortgage has been transferred to the Plaintiff and assumed by the Defendant, Ima Debtor, and
covering the following land:
(Insert legal description) on the 1st day of June, 2000 was $50,000, and the amount due for arrears under the said mortgage on
the 1st day of June, 2000 was $5,000. ($50,000 if mortgage has matured) AND IT IS FURTHER ORDERED that the Plaintiff have Judgment against the Defendant,
Ima Debtor, for the sum of $50,000 together with interest thereon at the rate of 25 percent per annum
from the 1st day of June, 2000 to the date hereof, plus costs to be taxed on a solicitor-client basis.
(Delete if no judgment on the covenant) AND IT IS FURTHER ORDERED that the Defendant(s) do pay into court to the credit of
this cause on or before the date 90 days from the last date of service of a copy hereof on the
Defendants, the total amount claimed, namely the sum of $50,000 with interest thereon at the rate of
25 percent per annum from the 1st day of June, 2000 together with costs to be taxed on a solicitor-
client basis. AND IT IS FURTHER ORDERED AND DECREED that in default of payment into court as
aforesaid, there will be foreclosure absolute, and upon application by the Plaintiff, the title of the
said mortgaged lands shall vest and remain in the Plaintiff absolutely freed from all right, title and
interest of the Defendant(s), Ima Debtor and Heavy Duty Finance Co., and all persons claiming
through or under the Defendant(s) in possession of the said lands shall give up possession thereof to
the Plaintiff within twenty (20) days after service upon them of a copy of the Final Order; provided,
however, that upon payment of the aforesaid arrears of $5,000 ($50,000 if mortgage has matured)
together with installments accruing due on the said mortgage from the 1st day of June, 2000 and such
interest as may have accrued on the arrears to the date of payment, plus costs to be taxed on a
solicitor-client basis, the Defendant(s), shall thereupon be relieved from immediate payment of so
much of the money secured by the mortgage herein as may not have become payable by lapse of
time.
Saskatchewan: Bar Admission Program P - 47 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Actual Order Nisi for Foreclosure
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
AND IT IS FURTHER ORDERED that a copy of this Order be served upon the solicitors for
all Defendants having filed Demands for Notice, upon the solicitors for or by personal service on the
registered owners and upon all other Defendants by ordinary registered mail.
AND IT IS FURTHER ORDERED that the costs of and incidental to this application be
costs in the cause on a solicitor-client basis.
ISSUED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
_______________, A.D. 2000.
_____________________________ Deputy Local Registrar
TAKE NOTICE THAT every order made without notice to the Defendant or a person affected by the Order, except where such order is consented to by the Defendant or a person affected by the Order, or is otherwise authorized by law, may be set aside or varied on application to the court. You should consult your solicitor as to your rights. This Order Nisi for Foreclosure was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
P - 48 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Actual Order Nisi for Foreclosure
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
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Saskatchewan: Bar Admission Program P - 49 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Notice of Credit
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
NOTICE OF CREDIT
TAKE NOTICE THAT the Plaintiff herein credits to the Defendant(s) the sum of
$__________ received by the Plaintiff on account of the mortgage sued on herein on the ____ day of
__________, A.D. 2000.
THE PLAINTIFF claims the following balance owing (together with interest on the said
balance at the rate of _____ percent per annum from the ___ day of ____________, A.D. 2000) as
of the ___ day of ____________, A.D. 2000;
Arrears of principal and interest $ •
Arrears of tax installments $ •
Tax account credit $ •
Accelerated balance $ • _______
TOTAL $•
P - 50 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Notice of Credit
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
____________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: ________________________ Solicitors for the Plaintiff
This Notice of Credit was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 51 Debtor Creditor Precedents - Final Order for Foreclosure, Memorandum to the Presiding Judge in Chambers
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
MEMORANDUM TO THE PRESIDING JUDGE IN CHAMBERS
THIS IS AN EX PARTE APPLICATION for a Final Order for Foreclosure on the terms and
conditions contained in the draft Order filed herewith.
FILED in support hereof are the following:
1. Proof of Service of the Order Nisi for Foreclosure.
2. Affidavit of Default.
3. Certificate of Solicitor.
4. Certificate of Search or Affidavit of Search.
5. Land Titles Registry Search Result.
6. Writ Registry Search.
7. Such further and other material as counsel may advise and this Honourable Court may allow.
P - 52 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure
Precedents - Final Order for Foreclosure, Memorandum to the Presiding Judge in Chambers
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ___day of
____________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: _________________________ Solicitors for the Plaintiff
This Memorandum to the Presiding Judge was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 53 Debtor Creditor Precedents - Final Order for Foreclosure, Notice of Motion
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
NOTICE OF MOTION
TAKE NOTICE that an application will be made to the Presiding Judge in Chambers at the
Court House in Saskatoon, in the Province of Saskatchewan, on _________________, 2000 at the
hour of ten o’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the
Plaintiff for a Final Order for Foreclosure on the terms of the draft Final Order for Foreclosure filed
herewith on the grounds that the mortgage herein has not been redeemed.
AND FURTHER TAKE NOTICE that in support of the said application will be read the
following:
1. Order Nisi for Foreclosure with Proof of Service thereof.
2. Affidavit of Default.
3. Certificate of Solicitor.
4. Certificate of Search or Affidavit of Search.
5. Notice of Credit with Proof of Service. (If applicable)
P - 54 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Final Order for Foreclosure, Notice of Motion
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
6. Land Titles Registry Search Result
7. Writ Registry Search.
8. Notice of Motion with Proof of Service thereof.
9. Such further and other material as counsel may advised and this Honourable Court may allow.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____day of
___________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: ___________________________ Solicitors for the Plaintiff
This Notice of Motion was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 55 Debtor Creditor Precedents - Final Order for Foreclosure, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
AFFIDAVIT OF JOHN DOE
I, JOHN DOE, of the City of Saskatoon, in the Province of Saskatchewan, (Position), MAKE
OATH AND SAY AS FOLLOWS:
1. THAT I am the (Position) of the Plaintiff in connection with the mortgage sued on herein
and as such have personal knowledge of the matters and facts hereinafter deposed to except where
otherwise stated and where so stated I verily believe the same to be true.
2. THAT none of the Defendants or any person on their behalf have made any payment to the
Plaintiff on account of the mortgage sued on herein since issuance of the Order Nisi for Foreclosure
in this action and the entire amount sued on herein has not been reduced in any manner whatsoever.
OR
2. THAT none of the Defendants or any person on their behalf have made any payments on
account of the mortgage sued on herein except as provided in the Notice of Credit herein dated
_____________, 2000, and the entire amount sued on herein has not been otherwise reduced in
any manner whatsoever. (If applicable)
P - 56 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Final Order for Foreclosure, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
3. THAT the Plaintiff has not been in possession of the mortgaged premises since issuance of
the Order Nisi herein.
OR
3. THAT the Plaintiff has been in possession of the mortgaged premises since issuance of the
Order Nisi herein, with the consent of the Defendant mortgagors.
OR
3. THAT the Plaintiff has been in possession of the mortgaged premises, the Defendants having
abandoned the same.
4. THAT I make this affidavit in support of an application for a Final Order for Foreclosure
foreclosing the equity of redemption of the Defendant(s) herein or any person claiming through or
under any of them.
SWORN BEFORE ME at the ) City of Saskatoon, in the ) Province of Saskatchewan, ) ____________________________ this ___ day of __________, A.D. 2000. ) JOHN DOE
) ___________________________________ ) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My Commission expires ________________. or Being a Solicitor. This Affidavit was delivered by:
RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8
Address for service: same as above Lawyer in charge: Grant A. Richards Telephone Number: (306) 653-5000 Facsimile Number: (306) 652-4171 Our File Number:
Saskatchewan: Bar Admission Program P - 57 Debtor Creditor Precedents - Final Order for Foreclosure, Certificate of Solicitor
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
CERTIFICATE OF SOLICITOR
I, GRANT A. RICHARDS, certify that no money has been paid to the office of RICHARDS,
GRANT & ALLEN to the credit of this action to the date hereof.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
______________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: ________________________ Solicitors for the Plaintiff
This Certificate of Solicitor was delivered by:
RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8
Address for service: same as above Lawyer in charge: Grant A. Richards Telephone Number: (306) 653-5000 Facsimile Number: (306) 652-4171 Our File Number:
P - 58 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Final Order for Foreclosure, Certificate of Solicitor
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
(This page has been intentionally left blank.)
Saskatchewan: Bar Admission Program P - 59 Debtor Creditor Precedents - Final Order for Foreclosure, Affidavit of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
AFFIDAVIT OF SEARCH
I, I. RUNFAST, of the City of Saskatoon, in the Province of Saskatchewan, Court Runner,
MAKE OATH AND SAY AS FOLLOWS:
1. THAT I did on the ____ day of June, A.D. 2000, personally search the records of the office
of the Local Registrar at the within Judicial Centre to determine whether or not any monies had been
paid into court to the credit of this action. As a result of such search, I ascertained that no monies
have been paid into court to the credit of this action.
SWORN BEFORE ME at the City ) of Saskatoon, in the Province of ) Saskatchewan, this ____ day of ) ____________, A.D. 2000. ) ______________________
) I. RUNFAST )
_____________________________ ) Being an Officer of the Court.
P - 60 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Final Order for Foreclosure, Affidavit of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
This Affidavit of Search was delivered by:
RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 61 Debtor Creditor Precedents - Final Order for Foreclosure, Certificate of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
CERTIFICATE OF SEARCH
I, (Name of Registrar), certify that I have searched the court record and no money has been
paid into court to the credit of this action to the date hereof.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
____________, A.D. 2000.
________________________ Local Registrar
P - 62 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Final Order for Foreclosure, Certificate of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
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Saskatchewan: Bar Admission Program P - 63 Debtor Creditor Precedents - Final Order for Foreclosure, Actual Final Order for Foreclosure
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
BEFORE THE HONOURBLE ) ON _____DAY, THE ___________ JUSTICE ____________________ ) DAY OF__________________, IN CHAMBERS ) A.D. 2000.
FINAL ORDER FOR FORECLOSURE
UPON THE APPLICATION of the Plaintiff and upon reading the Affidavit of Default,
Affidavit of Search and the Certificate of the Plaintiff’s solicitor and upon hearing counsel on behalf
of the Plaintiff:
IT IS HEREBY ORDERED AND DECREED that the Defendant(s) and all persons claiming
through and under them or any of them be and they and each of them are hereby absolutely
foreclosed from all their and each of their right, title and interest in and to the following land,
namely:
(Insert legal description)
and that the title to the said land is to be vested in the Plaintiff free from all right, title and interest or
equity of redemption on the part of the Defendant(s) or any of them or of any person or persons
claiming thereto or under them, or any of them. OR except for Easement No. 88S68689. (List
prior encumbrances or encumbrances which are not to be discharged)
P - 64 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Final Order for Foreclosure, Actual Final Order for Foreclosure
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
AND IT IS FURTHER ORDERED that the Registrar of the Saskatchewan Land Registration
District do cancel the existing Title Print to the said lands and do issue a new Title Print thereto in
the name of the Plaintiff freed and discharged from all encumbrances save as herein before provided.
AND IT IS FURTHER ORDERED that the Defendant(s) and all persons claiming through or
under them bound by the Order Nisi herein and in possession of any of the said lands do give up
possession thereof to the Plaintiff within 20 days from the service upon them of a copy of this Order.
AND IT IS FURTHER ORDERED that a copy of this Order be served upon the solicitors for
all appearing Defendants and upon all other Defendants by ordinary registered mail.
ISSUED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
____________, A.D. 2000.
_________________________ (Deputy) Local Registrar
TAKE NOTICE THAT every order made without notice to the Defendant or a person affected by the Order, except where such Order is consented to by the Defendant or a person affected by the Order, or is otherwise authorized by law, may be set aside or varied on application to the court. You should consult your solicitor as to your rights. This Final Order for Foreclosure was delivered by:
RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8
Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 65 Debtor Creditor Precedents - Final Order for Foreclosure, Affidavit of Value and Postal Address
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
AFFIDAVIT OF VALUE AND POSTAL ADDRESS
I, GRANT A. RICHARDS, of the City of Saskatoon, in the Province of Saskatchewan,
Barrister and Solicitor, MAKE OATH AND SAY AS FOLLOWS:
1. THAT I am a partner in the law firm of Richards, Grant & Allen, of the City of Saskatoon, in
the Province of Saskatchewan, solicitors for the Plaintiff, and as such I have personal knowledge of
the matters and facts hereinafter deposed to except where otherwise stated and where so stated I
verily believe the same to be true.
2. THAT the following piece of land described as follows:
(Insert legal description)
together with all buildings and other improvements thereon is in my opinion of the value of Sixty
Thousand ($60,000) Dollars-00/100 Cents.
P - 66 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Final Order for Foreclosure, Affidavit of Value and Postal Address
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
3. THAT the postal address of BIG BAD BANK is:
(Insert complete address).
SWORN BEFORE ME at the City ) of Saskatoon, in the Province of ) Saskatchewan, this ____ day of ) ____________, A.D. 2000. ) ___________________________
) GRANT A. RICHARDS _____________________________ ) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My Commission expires ____________. or Being a Solicitor. This Affidavit of Value and Postal Address was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 67 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Notice of Motion
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
NOTICE OF MOTION
TAKE NOTICE that an application will be made to the Presiding Judge in Chambers at the
Court House, at Saskatoon, in the Province of Saskatchewan, on the ____ day of ___________, 2000
at ten o’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the Plaintiff
for an Order Nisi for Sale of the mortgage referred to in the Statement of Claim herein on the terms
of the draft Order Nisi for Sale filed herein on the grounds that the Defendants have been noted for
default of defence.
AND FURTHER TAKE NOTICE that in support of the said application will be read the
following:
(a) Proof of Service of the Statement of Claim;
(b) Land Titles Registry Search Result and Writ Registry Search;
(c) Affidavit of Default;
P - 68 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Notice of Motion
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
(d) Certificate of Solicitor;
(e) Affidavit of Search or Certificate of Local Registrar;
(f) Notice of Motion with Proof of Service;
(g) Draft Order Nisi for Sale; and
(h) Such further and other material as counsel may advise and this Honourable Court may allow.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
__________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: ______________________ Solicitors for the Plaintiff
TO: IMA DEBTOR and HEAVY DUTY FINANCE CO. This Notice of Motion was delivered by:
RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8
Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 69 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Memorandum to the President Judge in Chambers
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND: IMA DEBTOR and HEAVY DUTY FINANCE CO.
DEFENDANTS
MEMORANDUM TO THE PRESIDING JUDGE IN CHAMBERS
THIS IS AN EX PARTE APPLICATION for an Order Nisi for Sale of the mortgaged
premises in the within action on the terms of the draft Order Nisi for Sale filed herein on the
grounds that the Defendants have been noted for default of defence.
FILED in support of this application are the following, namely:
(a) Statement of Claim with Proof of Service.
(b) Affidavit of Default.
(c) Affidavit of Solicitor.
(d) Land Titles Registry Search Result.
(e) Writ Registry Search.
(f) Draft Order Nisi for Sale.
(g) Such further material as counsel may advise and this Honourable Court may allow.
P - 70 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Memorandum to the Presiding Judge in Chambers
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
___________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: ______________________ Solicitors for the Plaintiff
This Memorandum to the Presiding Judge was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 71 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
AFFIDAVIT OF JOHN DOE
I, JOHN DOE, of the city of Saskatoon, in the Province of Saskatchewan, (Position), MAKE
OATH AND SAY AS FOLLOWS:
1. THAT I am the (position) of the Plaintiff with access to the records of the Plaintiff in
connection with the mortgage sued on herein and as such I have personal knowledge of the matters
and facts hereinafter deposed to except where otherwise stated and where so stated I verily believe
the same to be true.
2. THAT I am advised by Grant A. Richards, Barrister and Solicitor, and verily believe the
same to be true that photostatic copies of the mortgage sued on herein, assumption agreement and
most recent renewal agreement have previously been filed in the within action.
3. THAT default has been made under the terms of the said mortgage and the sum of $50,000 is
owing and in arrears thereunder as of the 1st day of June, A.D. 2000, the mortgage having matured.
(Use where mortgage has matured)
OR
P - 72 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
3. THAT default has been made under the terms of the said mortgage and sum of $50,000 is
owing thereunder as of the 1st day of June, 2000, of which the sum of $5,000 is in arrears. (Use
where mortgage has not matured)
4. THAT no payment has been made to the office of the Plaintiff on account of the mortgage
sued on herein since January 1, 2000.
5. THAT based on the appraisal attached hereto and marked as Exhibit “A” to this my affidavit,
the mortgaged land and premises is in my opinion of the value of $_______ in a forced sale
situation.
6. THAT I make this affidavit in support of an application to this Honourable Court for an
Order Nisi for sale of the said mortgage.
SWORN BEFORE ME at the City ) of Saskatoon, in the Province of ) Saskatchewan, this ____ day of ) _______________________ __________, A.D. 2000. ) JOHN DOE
) _____________________________ ) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My Commission expires ____________. or Being a Solicitor.
This Affidavit was delivered by:
RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8
Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 73 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Solicitor
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
CERTIFICATE OF SOLICITOR
I, GRANT A. RICHARDS, certify that no money has been paid to the office of RICHARDS,
GRANT & ALLEN, to the credit of the mortgage which is the subject of these proceedings to the
date hereof.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this___ day of
_____________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: ______________________ Solicitors for the Plaintiff
P - 74 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Solicitor
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
This Certificate of Solicitor was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 75 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
AFFIDAVIT OF SEARCH
I, I. RUNFAST, of the City of Saskatoon, in the Province of Saskatchewan, Court Runner,
MAKE OATH AND SAY AS FOLLOWS: 1. THAT I did on the ____ day of _________, A.D. 2000 personally search the records of the
office of the Local Registrar at the within Judicial Centre to determine whether or not any monies
had been paid into court to the credit of this action. As a result of such search, I ascertained that no
monies have been paid into court to the credit of this action.
SWORN BEFORE ME at the City ) of Saskatoon, in the Province of ) Saskatchewan, this ____ day of ) ___________________| __________, A.D. 2000. ) I. RUNFAST
) _____________________________ ) Being an Officer of the Court
P - 76 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
This Affidavit of Search was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 77 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
CERTIFICATE OF SEARCH
I, (Name of Registrar), certify that I have searched the court record and no money has been
paid into court to the credit of this action to the date hereof.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
___________, A.D. 2000.
__________________________ (Deputy) Local Registrar
P - 78 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
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Saskatchewan: Bar Admission Program P - 79 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Nisi for Sale
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
BEFORE THE HONOURABLE ) ON ___DAY, THE ____ JUSTICE ______________________ ) DAY OF______________, IN CHAMBERS ) A.D. 2000.
ORDER NISI FOR SALE
UPON THE APPLICATION of counsel for the Plaintiff, upon hearing read the Statement of
Claim with Proof(s) of Service thereof, the Affidavit of Default, the Land Titles Registry Search
Result, Writ Registry Search and the Certificate of the Plaintiff’s solicitor, all filed.
IT IS HEREBY DECREED AND ADJUDGED that the full amount due for principal and
interest under the mortgage between Ima Debtor, as mortgagor, and Big Bad Bank, as mortgagee,
dated the 1st day of June, 1988 and registered in the Land Title Office for the Saskatoon Land
Registration District on the 8th day of June, 1988 as Instrument No. 88-S-77777 and covering the
following land:
(Insert legal description)
on the 1st day of June, 2000, was $5,000. ($50,000 if mortgage has matured)
AND IT IS FURTHER ORDERED that the Plaintiff have Judgment against the Defendant,
Ima Debtor, for the sum of $50,000 together with interest thereon at the rate of 25 percent per annum
from the 1st day of June, 2000, to the date hereof, plus costs to be taxed on a solicitor-client basis.
(Delete this paragraph if no judgment is sought)
P - 80 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Nisi for Sale
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
AND IT IS FURTHER ORDERED that the Defendant, Ima Debtor, pay into Court to the
credit of this cause on or before the date 90 days from the last date of service of a copy hereof on the
Defendants, the total amount claimed, namely the sum of $50,000 with interest on $50,000 at the
rate of 25 percent per annum from the 1st day of June, 2000 together with costs of the action to be
taxed on a solicitor-client basis.
AND IT IS FURTHER ORDERED AND DECREED that on default of payment into court as
aforesaid, the mortgage land will be sold at Saskatoon, in the Province of Saskatchewan, under the
direction of the Sheriff, Judicial Centre of Saskatoon, at such time and place as may be fixed by the
said solicitor, but in any event, the sale shall take place no sooner than the 1st day of September,
2000 and no later than the 1st day of November, 2000 unless otherwise ordered. Provided, however,
that upon payment at any time before sale of the sum of $5,000 ($50,000 if mortgage has matured),
being the arrears above mentioned, together with installments accruing due under the mortgage after
the 1st day of June, 2000, and such interest as may have accrued on the arrears to the date of
payment, plus costs to be taxed, on a solicitor-client basis, the said Defendant, Ima Debtor, shall
thereupon be relieved from immediate payment of so much of the money secured by the mortgage
herein as may not have become payable by lapse of time.
AND IT IS FURTHER ORDERED that at least four weeks’ notice of the time, place and
conditions of the sale shall be given, with such notice to be published at least once per week for four
consecutive weeks commencing not later than four weeks before the date of sale, in the Saskatoon
Star-Phoenix, newspaper published at Saskatoon, in the Province of Saskatchewan, and, as well, by
printed notices to be affixed four weeks prior to the date of sale in at least five conspicuous places in
Saskatoon, in the Province of Saskatchewan.
AND IT IS FURTHER ORDERED that the Plaintiff and the Defendants are hereby given
leave to bid at the sale.
AND IT IS FURTHER ORDERED that the terms of the sale shall be $20,000 as a deposit at
the time of sale with the balance to be paid within two weeks from the date of sale.
Saskatchewan: Bar Admission Program P - 81 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Nisi for Sale
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
AND IT IS FURTHER ORDERED that the mortgaged land shall not be sold for an amount
less than $50,000.
AND IT IS FURTHER ORDERED that the mortgaged land shall be sold free and clear of all
encumbrances and that the ____ property taxes shall be adjusted as of the date of sale.
AND IT IS FURTHER ORDERED that the following rules and conditions shall apply to the
sale:
1. In the event the successful bidder does not pay the balance of the purchase price within 2 weeks from the date of sale, the deposit in the amount of $20,000 shall be forfeited.
2. In the event the Plaintiff is the purchaser of the property at the sale for a price of less than $52,000 it shall not be required to pay the deposit or the balance of the purchase monies into court.
3. ______ property taxes shall be adjusted as of the date of sale.
AND IT IS FURTHER ORDERED that upon confirmation of the sale, the titles to the
mortgaged land shall vest in the name of the purchaser, or his nominee, subject as aforesaid, free
from all right, title and equity of redemption on the part of the Defendants, Ima Debtor and Heavy
Duty Finance Co., or any person or person claiming through or under them, and the Defendants and
all persons claiming through or under them shall give up possession thereof to the purchaser within
20 days after service upon them of a copy of the Order confirming such sale.
AND IT IS FURTHER ORDERED that the purchase monies, unless the Plaintiff is the
purchaser for a price of less than $50,000, shall be paid into court to the credit of this cause to be
applied as directed by the Court.
AND IT IS FURTHER ORDERED that application for confirmation of the sale shall be
made to the Court within 2 months after the sale or such further time as the Court may order.
AND IT IS FURTHER ORDERED that in the event the sale shall be abortive, or not
confirmed, the Plaintiff may apply for foreclosure absolute, the title to the mortgaged land to vest
P - 82 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Nisi for Sale
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
and remain in the Plaintiff absolutely freed from all right, title and interest of the Defendants, and all
persons claiming through or under them; and the said Defendants and all persons claiming through
or under them in possession of the mortgaged land to give up possession thereof to the Plaintiff
within 20 days after service upon them of a copy of the Final Order for Foreclosure.
AND IT IS FURTHER ORDERED that a copy of this Order be served on all the registered
owners by personal service or service on their solicitors and on all other Defendants by ordinary
registered mail.
AND IT IS FURTHER ORDERED that the costs of and incidental to this application be
costs in the cause on a solicitor-client basis.
ISSUED at the City of Saskatoon, in the Province of Saskatchewan, this _____ day of
___________, A.D. 2000.
____________________________ (Deputy) Local Registrar
TAKE NOTICE THAT every order made without notice to the defendant or a person
affected by the order, except where such order is consented to by the defendant or a person affected by the order, or is otherwise authorized by law, may be set aside or varied on application to the court. You should consult your solicitor as to your rights. This Order Nisi for Sale was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 83 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Notice of Motion
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND: IMA DEBTOR and HEAVY DUTY FINANCE CO.
DEFENDANTS
NOTICE OF MOTION
TAKE NOTICE that an application will be made to the Presiding Judge in Chambers at the
Court House, at Saskatoon, in the Province of Saskatchewan, on the ____ day of _______, 2000, at
ten o’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the Plaintiff for
an Order confirming the judicial sale of the mortgaged premises in the within action to the purchaser
in accordance with the Order Nisi for Sale granted herein.
AND FURTHER TAKE NOTICE that in support of the said application will be read the
following:
(1) The Order Nisi for Sale with Proof of Service; (2) Land Titles Registry Search Result and Writ Registry Search; (3) Affidavit of Default; (4) Certificate of Solicitor;
P - 84 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Notice of Motion
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
(5) Affidavit of Search or Certificate of Local Registrar; (6) Affidavit of Selling Officer; (7) Notice of Motion with Proof of Service; (8) Draft Order Confirming Sale; and (9) Such further and other material as counsel may advise and this Honourable Court
may allow.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: __________________________ Solicitors for the Plaintiff
TO: IMA DEBTOR and HEAVY DUTY FINANCE CO. This Notice of Motion was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 85 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Memorandum to the Presiding Judge in Chambers
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
MEMORANDUM TO THE PRESIDING JUDGE IN CHAMBERS
THIS IS AN EX PARTE APPLICATION for an Order confirming the judicial sale of the
mortgaged premises in the within action to the purchaser in accordance with the Order Nisi for Sale
granted herein.
FILED in support hereof are the following: (1) Order Nisi for Sale with Proof of Service;
(2) Land Titles Registry Search Result and Writ Registry Search;
(3) Affidavit of Default;
(4) Certificate of Solicitor;
(5) Certificate of Local Registrar or Affidavit of Search;
P - 86 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Memorandum to the Presiding Judge in Chambers
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(6) Affidavit of Selling Officer; and
(7) Draft Order Confirming Sale.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this _____ day of
____________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: __________________________ Solicitors for the Plaintiff
This Memorandum to the Presiding Judge was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 87 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
AFFIDAVIT OF JOHN DOE
I, JOHN DOE, of the City of Saskatoon, in the Province of Saskatchewan, (Position), MAKE
OATH AND SAY AS FOLLOWS:
1. THAT I am the (Position) of the Plaintiff in connection with the mortgage sued on herein
and as such I have personal knowledge of the matters and facts hereinafter deposed to except where
otherwise stated and where so stated I verily believe the same to be true.
2. THAT none of the Defendants or any person on their behalf have made any payment to the
Plaintiff on account of the mortgage sued on herein since issuance of the Order Nisi in this action
and the entire amount sued on herein has not been reduced in any manner whatsoever.
3. THAT the Plaintiff has not been in possession of the mortgaged premises since issuance of
the Order Nisi herein.
P - 88 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Default
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
4. THAT I make this affidavit in support of an application for an Order confirming the judicial
sale of the mortgaged premises in the within action.
SWORN BEFORE ME at the City ) of Saskatoon, in the Province of ) Saskatchewan, this _____ day of ) _________, A.D. 2000. ) ______________________
) JOHN DOE )
_____________________________ ) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My Commission expires ____________. or Being a Solicitor. This Affidavit was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 89 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Solicitor
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
CERTIFICATE OF SOLICITOR
I, GRANT A. RICHARDS, certify that no money has been paid to the office of RICHARDS,
GRANT & ALLEN to the credit of the mortgage which is the subject of these proceedings to the
date hereof.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this _____ day of
________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: _______________________ Solicitors for the Plaintiff
P - 90 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Solicitor
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
This Certificate of Solicitor was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 91 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND: IMA DEBTOR and HEAVY DUTY FINANCE CO.
DEFENDANTS
AFFIDAVIT OF SEARCH
I, I. RUNFAST, of the City of Saskatoon, in the Province of Saskatchewan, Court Runner,
MAKE OATH AND SAY AS FOLLOWS:
1. THAT I did on the _____ day of __________, 2000, personally search the records of the
office of the Local Registrar at the within judicial centre to determine whether or not any monies had
been paid into court to the credit of this action. As a result of such search, I ascertained that no
monies have been paid into court to the credit of this action.
SWORN BEFORE ME at the City ) of Saskatoon, in the Province of ) Saskatchewan, this ____ day of ) ________, A.D. 2000. ) _______________________
) I. RUNFAST )
_____________________________ ) Being an Officer of the Court
P - 92 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
This Affidavit of Search was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 93 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
CERTIFICATE OF SEARCH
I, (NAME OF REGISTRAR), certify that I have searched the court record and no money has
been paid into court to the credit of this action to the date hereof.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
______________, A.D. 2000.
________________________ (Deputy) Local Registrar
P - 94 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Search
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
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Saskatchewan: Bar Admission Program P - 95 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Confirming Sale
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
BEFORE THE HONOURABLE ) ON ____ DAY, THE ____________ JUSTICE ) DAY OF __________, IN CHAMBERS ) A.D. 2000.
ORDER CONFIRMING SALE
UPON APPLICATION of counsel for the Plaintiff and reading the Order Nisi for Sale with
Proof of Service thereof, the Affidavit of Default, Certificate of Solicitor, Affidavit of Selling
Officer, Land Titles Registry Search Result and Writ Registry Search, all filed, and upon hearing
counsel on behalf of the Plaintiff:
P - 96 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Confirming Sale
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
IT IS HEREBY ORDERED that the sale of the mortgaged land, namely:
(Insert legal description)
pursuant to the Order made herein and dated the _____ day of June, 2000 , Joe Purchaser of
Saskatoon, in the Province of Saskatchewan, by the Sheriff for the sum of $35,000 be and the same
is hereby confirmed.
AND IT IS FURTHER ORDERED that the Registrar of the Saskatchewan Land Registration
District cancel the existing Title Print to the mortgaged land and issue a new Title Print in the name
of the said purchaser free and clear of all encumbrances OR (excepting Easement No. 77-S-77777
and other encumbrances with priority over mortgage)
AND IT IS FURTHER ORDERED that the Defendants, Ima Debtor and Heavy Duty
Finance Co., and all persons claiming through or under them in possession of the mortgaged land
and bound by the Order Nisi for Sale herein do deliver up such possession to the purchaser within
twenty (20) days from the service upon them of a copy of this Order.
AND IT IS FURTHER ORDERED that the proceeds of sale shall be distributed as follows:
A. In payment of the fees and disbursements of the Officer having conduct of the sale in the amount of $3,000;
B. In payment to the Plaintiff of the costs of the within action to be taxed on a solicitor-client basis;
C. In payment of property taxes to the date hereof; D. The balance of the purchase price shall be applied against the balance owing under
the mortgage sued on herein as of the date hereof.
AND IT IS FURTHER ORDERED that the costs of and incidental to this application be
costs in the cause on a solicitor-client basis.
Saskatchewan: Bar Admission Program P - 97 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Confirming Sale
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
ISSUED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
________, A.D. 2000.
___________________________ (Deputy) Local Registrar
This Order Confirming Sale was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
P - 98 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Confirming Sale
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
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Saskatchewan: Bar Admission Program P - 99 Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Notice of Intent to Realize on Security
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Government of Canada
NOTICE OF INTENT TO REALIZE ON SECURITY
Section 22 of the Farm Debt Review Act As required under section 22 of the Farm Debt Review Act ____________________ (Debtor) of ________________________
(Address) is hereby notified that it is the intent of _______________________ to realize on security being _________________________
(Types of security)
_________________________
on
__________________________________ (Asset)
__________________________________
and you are hereby notified of your right to make application under section 20 of the Farm Debt Review Act for a review of your financial affairs and to obtain a stay of proceedings against this action provided you are actually engaged in farming and:
a) unable to meet your obligations as they generally become due or;
b) ceased paying your current obligations in the ordinary course of business as they generally become due; or
c) the aggregate of your property is not, at a fair valuation, sufficient, or it disposed of at a fairly conducted sale under legal process would not be sufficient, to enable payment of all your obligations, due and accruing due.
P - 100 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Notice of Intent to Realize on Security
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
You may apply for a stay of proceedings by making an application to the Farm Debt Review Board at: 700 - 1783 Hamilton Street Regina, SK S4P 2B6 (Farm Debt Review Board Address and Phone Number) Application forms are available from the above or __________________________. Any application must be received by the Farm Debt Review Board within fifteen business days of receipt of this notice
DATED at the City of Saskatoon, in the Province of Saskatchewan, this _____ day of _______________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: _____________________________ Signature of Secured Creditor or Authorized Representative
Saskatchewan: Bar Admission Program P - 101 Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Notice of Intention
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
IN THE MATTER OF THE SASKATCHEWAN FARM SECURITY ACT, S.S. 1988 c.s-17.1
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF SASKATOON BETWEEN:
BIG BAD BANK APPLICANT
AND:
( * ) RESPONDENT
NOTICE OF INTENTION
TAKE NOTICE that Big Bad Bank intents to apply to the Court of Queen’s Bench after the
expiration of 150 days following service of this Notice of Intention upon the Respondent and upon
the Farm Land Security Board for an Order pursuant to section 11 of the Saskatchewan Farm
Security Act, S.S. 1988 c.S-17.1, that clause 9(1)(d) of the said Act does not apply with respect to the
mortgage hereinafter described.
In compliance with the said Act and Regulations thereunder:
(i) The Judicial Centre where the application is proposed to be made is:
(ii) The Mortgagee’s name and address is as follows:
(iii) The Mortgagor’s name and address is as follows:
(iv) The property description of the farm land covered by the mortgage is as follows:
P - 102 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Notice of Intention
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
(v) Mortgage particulars:
(a) Date of execution: (b) Amount of mortgage: (c) Mortgage balance outstanding: (d) Interest rate: (e) Installments payable: (f) Arrears of principal: (g) Arrears of interest: (h) Total arrears: (i) Amount and dates of all installments paid during the three years immediately
preceding the date of this Notice: See Schedule “A”: (j) Mortgage renewal date:
(vi) A copy of the said mortgage and last renewal agreement are attached as Schedule “B”.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: _________________________ Solicitors for the Applicant
This Notice of Intention was delivered by:
RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8
Address for service: same as above Lawyer in charge: Grant A. Richards Telephone Number: (306) 653-5000 Facsimile Number: (306) 652-4171 Our File Number:
Saskatchewan: Bar Admission Program P - 103 Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Notice of Motion
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK APPLICANT
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. RESPONDENTS
NOTICE OF MOTION
TAKE NOTICE that an application will be made to the Presiding Judge in Chambers, at the
Court, in the City of Saskatoon, in the Province of Saskatchewan, on the ____ day of _______, A.D.
2000, at ten o’clock in the forenoon, or so soon thereafter as counsel can be heard on behalf of the
Applicant for an Order pursuant to section 11 of the Saskatchewan Farm Security Act to the effect
that section 9(1)(d) of the said Act shall not apply to the Mortgage (Agreement for Sale) between the
Applicant as mortgagee (vendor) and the Respondent as mortgagor (purchaser) dated __________.
In relation to the following land, namely:
(Insert legal description)
P - 104 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Notice of Motion
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
AND FURTHER TAKE NOTICE that in support of the said application will be read the
following:
1. Notice of Motion with Proof of Service.
2. Notice of Intention with Proof of Service.
3. Affidavit of Default.
4. Report of the Farm Land Security Board.
5. Draft Order.
6. Such further material as counsel may advise and this Honourable Court may allow.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
____________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: ________________________ Solicitor for the Applicant
TO: The Respondents This Notice of Motion was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 105 Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Order
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK APPLICANT
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. RESPONDENTS
Before the Honourable ) On ________ day, the _________ Justice ) Day of ____________, In Chambers ) A.D. 2000.
ORDER
UPON THE APPLICATION of the Applicant, and upon the report of the Farm Land
Security Board and the Affidavit of ________________, all filed, and upon hearing counsel on
behalf of the Applicant;
IT IS HEREBY ORDERED and adjudged that section 9(1)(d) of the Saskatchewan Farm
Security Act does not apply to the mortgage (Agreement for Sale) dated __________ and registered
as Instrument No. ________________ made between the Applicant and the Respondent in relation
to the land described as follows, namely:
(Insert legal description)
P - 106 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Order
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
IT IS FURTHER ordered that the costs of the within application be costs in the cause.
ISSUED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
___________, A.D. 2000.
_______________________ Local Registrar This Order was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 107 Debtor Creditor – Foreclosure Precedents – Miscellaneous, Quit Claim Deed
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
QUIT CLAIM DEED
MADE THIS ____ day of ________, A.D. 2000. BETWEEN:
IMA DEBTOR, of the City of Saskatoon, in the Province of Saskatchewan,
(hereinafter called the “Grantor”) THE PARTY OF THE FIRST PART
AND:
BIG BAD BANK, A chartered bank with an office at the City of Saskatoon, in the Province of Saskatchewan,
(hereinafter called the “Grantee”) THE PARTY OF THE SECOND PART
WITNESS that the Grantors for and in consideration of the sum of One ($1.00) Dollar of
lawful money in Canada to them in hand paid by the Grantee, at or before the sealing or delivery of
these presents, receipt whereof is acknowledged by the Grantor, and subject as herein provided, in
consideration of the forgiveness of the mortgage debt, as more particularly described in Schedule
“A”, the Grantor grants, releases and quit claims to the Grantee all the estate, right, title, interest,
claim and demand whatsoever both at law and equity or otherwise howsoever and whether in
possession or expectancy of the Grantor of, in, to or out of the lands and premises as more
particularly described in Schedule “A” (hereinafter sometimes referred to as the “Mortgaged
Premises”).
P - 108 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Miscellaneous, Quit Claim Deed
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Acceptance of the Quit Claim by the Grantee and release of the Grantor by the Grantee in
accordance herewith is conditional upon:
(a) The Grantor providing the Grantee with a registerable Transfer of Title to the
Mortgaged Premises which upon registration into the name of the Grantee, shall register free and clear of all encumbrances of any nature or kind whatsoever excepting the mortgage in favour of the Grantee; and
(b) The Grantee obtaining vacant possession of the Mortgaged Premises together
with all keys therefore immediately on the ____ day of ________, A.D. 2000. In the event that any of these conditions hereinbefore set forth are not satisfied on or before
the date in Paragraph (b), this agreement shall be null and void and of no effect at the option of the
Grantee and the Grantee shall be free to take whatever proceedings and actions it deems necessary
pursuant to its mortgage hereinbefore referred to.
Where the singular or the masculine is used in this deed, the same shall be deemed to include
the plural or feminine, or the body politic or corporate; also the respective heirs, executors,
administrators, successors and assigns of the parties hereto and each of them, where the context or
the parties so require.
The Grantor shall and will from time to time and at all times hereafter, upon every reasonable
request of the Grantee, make, do and execute, or cause to be made, done and executed, all such
further acts, deeds, and assurances of the same for the more effectually assigning the Mortgaged
Premises onto the Grantee, in manner aforesaid, and according to the true intent and meaning of
these premises as by the Grantee or its solicitors shall reasonably advise or require.
Saskatchewan: Bar Admission Program P - 109 Debtor Creditor – Foreclosure Precedents – Miscellaneous, Quit Claim Deed
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
IN WITNESS WHERE OF IMA DEBTOR has hereunto set his hand and seal this ____ day
of ____________, A.D. 2000.
SIGNED, SEALED AND DELIVERED ) in the presence of: )
) ____________________ ) IMA DEBTOR
___________________________________ ) Witness
IN WITNESS WHEREOF the BIG BAD BANK has caused these presents to be duly signed by its agents in that behalf this ____ day of _____________, A.D. 2000.
SIGNED ON BEHALF OF THE ABOVE BIG BAD BANK NAMED BIG BAD BANK IN THE PRESENCE OF: Per: __________________ __________________________ Witness
P - 110 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Miscellaneous, Quit Claim Deed
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
SCHEDULE “A”
A mortgaged granted by IMA DEBTOR in favour of the BIG BAD BANK, dated ________
and registered in the Land Titles Registry as Plan No. __________ on the ____ day of
____________, A.D. 2000 with respect to the lands described as follows:
(Insert legal description)
*Attach Affidavit(s) of Execution and also Arrange for Execution of Transfer
Saskatchewan: Bar Admission Program P - 111 Debtor Creditor – Foreclosure Precedents – Miscellaneous, Writ of Possession
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000
C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
WRIT OF POSSESSION ELIZABETH THE SECOND, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.
WHEREAS lately in our Court of Queen's Bench by a Final Order for Foreclosure of the
said Court, dated the ____ day of ___________, A.D. 2000, the Defendants, IMA DEBTOR and
HEAVY DUTY FINANCE CO., were ordered to deliver to the Plaintiff, BIG BAD BANK,
possession of all that certain land and premises described as follows:
(insert legal description)
with the appurtenances in your bailiwick:
Therefore, we command you that you enter the same, and without delay you cause the said
Plaintiff, BIG BAD BANK, to have possession of the said land and premises with the
appurtenances, and that you defend and keep it, its successors and assigns in peaceable and quiet
possession when and as often as any interruption may or shall, from time to time, be given or
P - 112 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Miscellaneous, Writ of Possession
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
offered to it or them or any of them by the said Defendants, IMA DEBTOR and HEAVY DUTY
FINANCE CO., or any person claiming through or under them.
AND IN WHAT MANNER you shall have executed this Writ make appear to our said Court,
immediately after execution thereof and have then this Writ.
ISSUED from the Office of the Local Registrar of the Court of Queen's Bench for
Saskatchewan, Judicial Centre of Saskatoon, on this ____ day of __________, A.D. 2000.
_________________________ Deputy Local Registrar
Mr. Sheriff:
Cause possession to be delivered to the Plaintiff of the within mentioned premises.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
______________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: ___________________________ Solicitors for the Plaintiff
This Writ of Possession was delivered by:
RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8
Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 113 Debtor Creditor – Foreclosure Precedents – Miscellaneous, Memorandum to the Presiding Judge
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
IN THE MATTER OF A PROPOSED ACTION
BETWEEN:
BIG BAD BANK PROPOSED PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. PROPOSED DEFENDANTS
MEMORANDUM TO THE PRESIDING JUDGE
THIS IS AN EX PARTE APPLICATION on behalf of the Proposed Plaintiff pursuant to
section 3(4) of the Land Contracts (Actions) Act for leave to commence an action for foreclosure of
Mortgage No. __________, possession of the mortgaged premises and/or the recovery of any monies
payable under the mortgage on the grounds that the Proposed Defendants have consented thereto.
FILED in support hereof are the following:
1. Notice of Intention to Provincial Mediation Board with Proof of Service. 2. Affidavit of Default. 3. Certificate of Solicitor. 4. Land Titles Registry Search Result. 5. Acknowledgment and Consent. 6. Such further and other material as counsel may deem advisable and this
Honourable Court may allow.
P - 114 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Miscellaneous, Memorandum to the Presiding Judge
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
____________, A.D. 2000.
RICHARDS, GRANT & ALLEN
Per: Solicitors for the Proposed Plaintiff
This Memorandum to the Presiding Judge was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
Saskatchewan: Bar Admission Program P - 115 Debtor Creditor – Foreclosure Precedents – Miscellaneous, Acknowledgment and Consent
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
ACKNOWLEDGMENT AND CONSENT
WE, the undersigned, being the registered owners of the following land and premises:
(Insert legal description)
Civic Address: (Insert civic address)
hereby acknowledge and agree as follows:
1. The mortgage in favour of BIG BAD BANK (hereinafter referred to as the "mortgagee")
registered against the aforesaid land and premises is currently in arrears and we do not intend to
redeem the mortgage or make any further payments on account of same.
2. We are abandoning the mortgaged premises on ________________, 2000, and we hereby
consent to the mortgagee taking immediate possession of same thereafter.
3. We hereby consent to the mortgagee being granted leave to commence an action as defined
in the Land Contracts (Actions) Act against us in relation to the aforesaid mortgage for foreclosure
and possession of the mortgaged premises.
4. We have been advised by the mortgagee that upon a Final Order for Foreclosure being
granted to the mortgagee, any indebtedness that we may have in relation to the aforesaid mortgage
will be extinguished and we will not be liable for any deficiency that may exist in relation to the
mortgage.
Accordingly, we hereby consent to the mortgagee obtaining an Order Nisi for
Foreclosure with a short redemption period and a Final Order for Foreclosure as soon as possible
thereafter.
5. We hereby acknowledge and agree that the within document is not a quit claim arrangement
and has been executed by us for the purpose of facilitating the mortgagee in its action.
P - 116 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Miscellaneous, Acknowledgment and Consent
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
6. We further acknowledge and agree that the within document does not operate to release us
from any liability that we may have to the mortgagee for any indebtedness other than the aforesaid
mortgage indebtedness.
7. We hereby consent to an order allowing the mortgagee to serve all documents on us in
connection with its action by prepaid ordinary registered mail at the following address, rather than
having process servers attend to personal service of such documents on us:
(Insert address for service)
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
_____________, A.D. 2000.
_______________________ _____________________________________ WITNESS MORTGAGOR
Saskatchewan: Bar Admission Program P - 117 Debtor Creditor – Foreclosure Precedents – Miscellaneous, Affidavit of Execution
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
C A N A D A ) PROVINCE OF SASKATCHEWAN )
) TO WIT: )
AFFIDAVIT OF EXECUTION
I, ________, of the City of Saskatoon, in the Province of Saskatchewan,____________,
MAKE OATH AND SAY AS FOLLOWS:
1. THAT I was personally present and did see ________________ named in the within
instrument, who is personally known to me to be the person named herein duly sign and execute the
same for the purposes named herein.
2. THAT the same was executed at the City of Saskatoon, in the Province of Saskatchewan,
on the ____ day of ________________ A.D. 2000, and that I am the subscribing witness thereto.
3. THAT I know the said _______________ and he/she is in my belief of the full age of
eighteen years.
SWORN BEFORE ME at the City ) of Saskatoon, in the Province of ) Saskatchewan, this ____ day ) of ___________, A.D. 2000. ) ________________________
) ______________________________) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My Commission expires ______________. or Being a Solicitor.
P - 118 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Miscellaneous, Affidavit of Execution
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
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Saskatchewan: Bar Admission Program P - 119 Debtor Creditor – Foreclosure Precedents – Miscellaneous, Order
Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
Q.B. No. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
IN THE MATTER OF A PROPOSED ACTION BETWEEN:
BIG BAD BANK PLAINTIFF
AND:
IMA DEBTOR and HEAVY DUTY FINANCE CO. DEFENDANTS
Before the Honourable _____________ ) On ________day, the _____ Justice _____________________ ) Day of ______________ In Chambers ) A.D. 2000.
ORDER
UPON APPLICATION of counsel for the Proposed Plaintiff and upon hearing read the
Notice of Intention, Affidavit of Default, Certificate of Solicitor, Acknowledgment and Consent and
Land Titles Registry Search Result, all filed:
IT IS HEREBY ORDERED THAT the Proposed Plaintiff shall have leave to commence an
action for foreclosure of Mortgage No. _____________, possession of the mortgaged premises,
and/or the recovery of any monies payable under the mortgage.
P - 120 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Miscellaneous, Order
May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.
AND IT IS FURTHER ORDERED THAT all documents in the within proceedings may be
served on IMA DEBTOR by pre-paid ordinary registered mail at the following address unless and
until otherwise ordered:
(Insert address for service)
ISSUED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of
_____________, A.D. 2000.
Deputy Local Registrar
TAKE NOTICE THAT every order made without notice to the defendant or a person affected by the order, except where such order is consented to by the defendant or a person affected by the order, or is otherwise authorized by law, may be set aside or varied on application to the court. You should consult your solicitor as to your rights. This Order was delivered by: RICHARDS, GRANT & ALLEN Barristers and Solicitors #500 - 128, Fourth Avenue South Saskatoon, SK S7K 1M8 Address for service: same as above Lawyer in charge: Telephone Number: Facsimile Number: Our File Number:
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