Statement of Defence in Alberta Foreclosure
In the Alberta foreclosure process, once a Statement of Claim has been filed and served to all the parties, the property owner has 15 days to file a Statement of Defense or a Demand of Notice. Generally speaking, a Statement of Defense should be filed when the liability of the property owner is in dispute.
On the other hand, a Demand of Notice would be more appropriate when the only thing in dispute is the amount of the mortgage. Since a Demand of Notice can represent an admission of liability, the property owner should only file the Demand after careful consideration of the situation and the possible consequences.
In real life, Alberta foreclosure actions generally go undefended, due to the lack of valid defense, knowledge, and rights and obligations of the property owner. In certain cases, filing of a Statement of Defense is used to delay the proceedings, and buy the property owner more time.
When a Statement of Defense is filed, an application for summary judgment under Rule 159 must be successfully brought, or a full trial successfully concluded, before the Alberta foreclosure action can move forward.
When and if a Statement of Defense or Demand of Notice is not filed during the appropriate time period set by the law, the property owner is deemed to have admitted all the facts as alleged in the Statement of Claim. The lender is then able to note that the property owner is in default. This must be done before the lender can make an application for relief under Rule 686 (3).
Prior to such application for relief, Rule 687 requires an Affidavit of Value to be filed. The Affidavit establishes the value of the property, and must be completed by an independent appraiser who establishes the current market value of the property. They Affidavit must include an indication of the length of time the appraiser believes it would take the property to sell at market value, as well as an estimate of the value of the property if were to be sold on forced sale basis.
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The above information is provided as a guideline and is not intended to give a professional legal advice. Please consult a real estate lawyer for their opinion on your particular case
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