FORECLOSURE ACTIONS - Law Society of...

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

May 2000 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.

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

ii Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure


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


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


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.

2 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure


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.



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.



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.



(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”



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.



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



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.


Revised May 2001 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.

(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



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.



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;



• 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.



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.



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.



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).



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



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.)).



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 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.



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.



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).



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:


• Proof of Service of the Order Nisi (if not already filed);





• Writ Registry Search; and

• Draft Final Order (Form 56, Rule 438 of the Queen’s Bench Rules).



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



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:




• Certificate of Local Registrar or Affidavit of Search;


• 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.



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.



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:


• Affidavit of Sheriff or Selling Officer;




• 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



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.



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.



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.



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.



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



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.



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.



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



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.



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.


PRECEDENTS

Saskatchewan: Bar Admission Program P - 1 Debtor Creditor – Foreclosure Precedents – Sample Checklists


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):

P - 2 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Sample Checklists

Revised August 2004 Not to be used or reproduced without permission– Saskatchewan Legal Education Society Inc.

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:



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:


7. File Proof of Service and note for default:

8. Demands for Notice by:

(a) Solicitor:

(b) Solicitor:

(c) Solicitor:

(d) Solicitor:



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:


(a) Adjourned to:

(b) Adjourned to:

6. Order Nisi granted:

7. Order Nisi issued:


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:


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:



2. Prepare documents and forward to client for execution:

3. Serve documents on appearing parties:

4. File documents with Proof of Service:


(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:


12. Forward new title to client:



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?



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



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



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



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.



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



(This page has been intentionally left blank.)

Saskatchewan: Bar Admission Program P - 13 Debtor Creditor – Foreclosure Precedents – Notice of Intention with Affidavit of Service


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

May 2000 Not to be used or reproduced without permission– Saskatchewan Legal Education Society Inc.

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


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

May 2000 Not to be used or reproduced without permission– Saskatchewan Legal Education Society Inc.

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


Q.B. NO. of A.D. 2000 C A N A D A PROVINCE OF SASKATCHEWAN



BIG BAD BANK PROPOSED PLAINTIFF

AND:


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.

P - 18 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Leave to Commence, Memorandum to the Presiding Judge in Chambers


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.


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


Q.B. No. of A.D. 2000





AND:


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.

P - 20 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Leave to Commence, Affidavit of Default


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


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


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



Saskatchewan: Bar Admission Program P - 23 Debtor – Creditor – Foreclosure Precedents - Leave to Commence, Certificate of Solicitor


Q.B. No. of A.D. 2000





AND:


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.


_______________, A.D. 2000.


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


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


Q.B. No. of A.D. 2000





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


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


Q.B. No. of A.D. 2000


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


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


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


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


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:


AND:


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


(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.


____________, 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


Q.B. No. of A.D. 2000



BETWEEN:


AND:



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.


(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


(e) Certificate of Search or Affidavit of Search.

(f) Draft Order Nisi for Foreclosure.


____________, A.D. 2000.


Per: ____________________________ Solicitors for the Plaintiff


Saskatchewan: Bar Admission Program P - 35 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Affidavit of Default


Q.B. No. of A.D. 2000



BETWEEN:


AND:





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



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


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


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



Saskatchewan: Bar Admission Program P - 39 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Certificate of Solicitor


Q.B. No. of A.D. 2000



BETWEEN:


AND:



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.


______________, A.D. 2000.


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


P - 40 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Certificate of Solicitor



Saskatchewan: Bar Admission Program P - 41 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Affidavit of Search


Q.B. No. of A.D. 2000



BETWEEN:


AND:


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


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


Q.B. No. of A.D. 2000



BETWEEN:


AND:


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.


____________, A.D. 2000.

_____________________ Local Registrar

P - 44 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Certificate of Search



Saskatchewan: Bar Admission Program P - 45 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Actual Order Nisi for Foreclosure


Q.B. No. of A.D. 2000



BETWEEN:


AND:


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


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


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



Saskatchewan: Bar Admission Program P - 49 Debtor Creditor – Foreclosure Precedents - Order Nisi for Foreclosure, Notice of Credit




BETWEEN:


AND:


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



____________, A.D. 2000.


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


Q.B. No. of A.D. 2000



BETWEEN:


AND:



THIS IS AN EX PARTE APPLICATION for a Final Order for Foreclosure on the terms and

conditions contained in the draft Order filed herewith.


1. Proof of Service of the Order Nisi for Foreclosure.



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


DATED at the City of Saskatoon, in the Province of Saskatchewan, this ___day of

____________, A.D. 2000.


Per: _________________________ Solicitors for the Plaintiff


Saskatchewan: Bar Admission Program P - 53 Debtor Creditor Precedents - Final Order for Foreclosure, Notice of Motion




BETWEEN:


AND:


NOTICE OF MOTION


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.


following:

1. Order Nisi for Foreclosure with Proof of Service thereof.



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


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.



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


Q.B. No. of A.D. 2000



BETWEEN:


AND:






and as such have personal knowledge of the matters and facts hereinafter deposed to except where


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


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:


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


Q.B. No. of A.D. 2000



BETWEEN:


AND:




GRANT & ALLEN to the credit of this action to the date hereof.


______________, A.D. 2000.


Per: ________________________ Solicitors for the Plaintiff

This Certificate of Solicitor was delivered by:



P - 58 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Final Order for Foreclosure, Certificate of Solicitor



Saskatchewan: Bar Admission Program P - 59 Debtor Creditor Precedents - Final Order for Foreclosure, Affidavit of Search


Q.B. No. of A.D. 2000



BETWEEN:


AND:


AFFIDAVIT OF SEARCH



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


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


Q.B. No. of A.D. 2000



BETWEEN:


AND:



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.


____________, A.D. 2000.

________________________ Local Registrar

P - 62 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Final Order for Foreclosure, Certificate of Search



Saskatchewan: Bar Admission Program P - 63 Debtor Creditor Precedents - Final Order for Foreclosure, Actual Final Order for Foreclosure


Q.B. No. of A.D. 2000



BETWEEN:


AND:


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:


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


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.


____________, 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:



Saskatchewan: Bar Admission Program P - 65 Debtor Creditor Precedents - Final Order for Foreclosure, Affidavit of Value and Postal Address


Q.B. No. of A.D. 2000



BETWEEN:


AND:


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:


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


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




BETWEEN:


AND:


NOTICE OF MOTION


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.


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


(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.


__________, A.D. 2000.


Per: ______________________ Solicitors for the Plaintiff

TO: IMA DEBTOR and HEAVY DUTY FINANCE CO. This Notice of Motion was delivered by:



Saskatchewan: Bar Admission Program P - 69 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Memorandum to the President Judge in Chambers




BETWEEN:


AND: IMA DEBTOR and HEAVY DUTY FINANCE CO.

DEFENDANTS


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



___________, A.D. 2000.




Saskatchewan: Bar Admission Program P - 71 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Default


Q.B. No. of A.D. 2000



BETWEEN:


AND:



I, JOHN DOE, of the city of Saskatoon, in the Province of Saskatchewan, (Position), MAKE


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


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:



Saskatchewan: Bar Admission Program P - 73 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Solicitor




BETWEEN:


AND:




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.



P - 74 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Solicitor



Saskatchewan: Bar Admission Program P - 75 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Search


Q.B. No. of A.D. 2000



BETWEEN:


AND:


AFFIDAVIT OF SEARCH


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


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


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


Q.B. No. of A.D. 2000



BETWEEN:


AND:



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.


___________, A.D. 2000.

__________________________ (Deputy) Local Registrar

P - 78 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Search



Saskatchewan: Bar Admission Program P - 79 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Nisi for Sale


Q.B. No. of A.D. 2000



BETWEEN:


AND:


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:


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


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


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


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.



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


Q.B. No. of A.D. 2000



BETWEEN:



DEFENDANTS

NOTICE OF MOTION


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.


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


(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.


________, A.D. 2000.


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


Q.B. No. of A.D. 2000



BETWEEN:


AND:



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


(6) Affidavit of Selling Officer; and

(7) Draft Order Confirming Sale.


____________, A.D. 2000.


Per: __________________________ Solicitors for the Plaintiff


Saskatchewan: Bar Admission Program P - 87 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Default


Q.B. No. of A.D. 2000



BETWEEN:


AND:






and as such I have personal knowledge of the matters and facts hereinafter deposed to except where


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


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


Q.B. No. of A.D. 2000



BETWEEN:


AND:




GRANT & ALLEN to the credit of the mortgage which is the subject of these proceedings to the

date hereof.


________, A.D. 2000.


Per: _______________________ Solicitors for the Plaintiff

P - 90 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Solicitor



Saskatchewan: Bar Admission Program P - 91 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Affidavit of Search




BETWEEN:



DEFENDANTS

AFFIDAVIT OF SEARCH



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


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


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


Q.B. No. of A.D. 2000



BETWEEN:


AND:



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.


______________, A.D. 2000.

________________________ (Deputy) Local Registrar

P - 94 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents - Judicial Sale, Certificate of Search



Saskatchewan: Bar Admission Program P - 95 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Confirming Sale


Q.B. No. of A.D. 2000



BETWEEN:


AND:


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


IT IS HEREBY ORDERED that the sale of the mortgaged land, namely:


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.



Saskatchewan: Bar Admission Program P - 97 Debtor Creditor – Foreclosure Precedents - Judicial Sale, Order Confirming Sale



________, 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


(This page has been intentionally blank.)

Saskatchewan: Bar Admission Program P - 99 Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Notice of Intent to Realize on Security


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


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.


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


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


(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”.


________, A.D. 2000.


Per: _________________________ Solicitors for the Applicant

This Notice of Intention was delivered by:



Saskatchewan: Bar Admission Program P - 103 Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Notice of Motion


Q.B. No. of A.D. 2000



BETWEEN:


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:


P - 104 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Notice of Motion



following:

1. Notice of Motion with Proof of Service.

2. Notice of Intention with Proof of Service.


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.


____________, A.D. 2000.


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


Q.B. No. of A.D. 2000



BETWEEN:


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:


P - 106 Saskatchewan: Bar Admission Program Debtor Creditor – Foreclosure Precedents – Foreclosure of Farm Land, Order


IT IS FURTHER ordered that the costs of the within application be costs in the cause.


___________, 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


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


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


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


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:


*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


Q.B. No. of A.D. 2000



BETWEEN:


AND:


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


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.


______________, A.D. 2000.



This Writ of Possession was delivered by:



Saskatchewan: Bar Admission Program P - 113 Debtor Creditor – Foreclosure Precedents – Miscellaneous, Memorandum to the Presiding Judge




IN THE MATTER OF A PROPOSED ACTION

BETWEEN:


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.


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



____________, A.D. 2000.


Per: Solicitors for the Proposed Plaintiff


Saskatchewan: Bar Admission Program P - 115 Debtor Creditor – Foreclosure Precedents – Miscellaneous, Acknowledgment and Consent


ACKNOWLEDGMENT AND CONSENT

WE, the undersigned, being the registered owners of the following land and premises:


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


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)


_____________, A.D. 2000.

_______________________ _____________________________________ WITNESS MORTGAGOR

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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,____________,


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



Saskatchewan: Bar Admission Program P - 119 Debtor Creditor – Foreclosure Precedents – Miscellaneous, Order






AND:


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


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)


_____________, 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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