*************
The following message is relayed to you by [email protected]
************
Hi David,
Let me say that in the end you will have to go judicial. Only by
that means can this situation be put to bed permanently.
First off. Make sure that the land use neighbor will continue to
want to retain his contractual right to use the land and do that
until the agreement runs out. Look into the agreement and see if
there is any means to extend that agreement. That will give you the
possibility of extending the contract further out in time.
There is always the possibility that the neighbor could sell his
contract. He has the right to do that all on his own. You might let
him know that his best option is to use the land through the
contractual period and then sell. That will give him many years of
use which is worth something and then sell later or extend. The use
contract can be looked at as both use and money in the bank when he
wishes to sell. He then can see that he has two actions which are of
value to him and he should take advantage of both. Meaning don't
sell until much later.
This is basically a means to keep the farm out of the banks hands.
Right now it is your only option. You must be upfront and open with
him for he is your only hope at the moment. If you will, pray that
he doesn't wind up in a situation where he personally needs and could
use the money by selling the use contract. However should the lender
really want to close this situation out, he can continue to make
higher and higher offers to sell to entice the neighbor to sell.
Theoretically the bank can make bids all the way up to $50,000 and
close out their loan and take the collateral, the farm in exchange
for their loan. Take it by foreclosure once all liens and
contractual restrictions and whatever claims have been eliminated
save theirs.
Now to address the situation with the bank. I am not familiar with
the laws but in the US, one can sue lenders for being predatory and
opportunistic. Your description definitely fits this area. Fraud is
not involved and use of the term will only weaken and reduce your
argument. The best and only way to use the term is 'alleged fraud'
for only a court can determine and pronounce something a fraud and
you will be operating within an area where this is a truth.
Unsubstantiated claims come across as emotional sour grapes in this
arena and a sign that the person making those statements has no idea
what he is doing. When you go judicial you can allege fraud in your
suit along with everything else.
You will have to get legal counsel to home you in on what laws to
attack with and you will have to sue to clear this away. Without
doing that you can threaten at this time until such point that you
have the wherewithall to go legal. You should be able to use the
internet to discover what 'codes' both civil, criminal and
governmental that you can use. The best way to start is to talk to a
realtor or real estate broker to find out how Canada names its codes
concerning real estate so that you know where and how to search.
You can also contact law enforcement to get a clue where to search
for criminal predatory and opportunistic illegal acts along with
attempts to defraud as well as defraud.
Paul
On Aug 3, 2012, at 10:27 AM, [email protected] wrote:
Dear Trommers,
I have a legal problem as explained below:
Is there anyone with any law back ground or just good old common
sense that can help me solve this problem:
(Note: I posted this question on: "JustAnswer" on line and a week
has went by and no one has yet answered.
Do not worry that this is a Canadian situation.
Common Law is based on common sense and good judgement and good
understanding of right and wrong. This is universal.
Thanks in advance for any advice.
David
Problem:
I have a brother who lives on a farm in Manitoba, which he inherited
from our parents, who died in 2006 and 2007. I am Arnold's oldest
brother and I live in Cambridge, Ontario. I am on perment disability
pension. I cannot travel there to handle the affairs. We cannot
afford legal battles or costs of any kind.
Arnold is not capable of farming the land. Arnold is poorly
educated and considered mentally
handicapped, not capable of making sound decisions (having imparied
judgement) on any significant or even basic matters. Arnold works
part
time or seasonal at best. Arnold has a very bad credit history.
Arnold is considered in the community as being a few cards short of a
full deck. Any sufficiently educated or and mentally or intellectually
competent person that knows Arnold, would atest to that.
In 2009
Arnold needed some money and went to a mortgage company to get a
loan.
He used the farm as collateral. The farm is or could be worth around
$50,000. The head office of the mortgage company is in Richmond Hill,
Ontario.
Some how the mortgage company gave him a loan for $50,000.
How? I do not know. It is beyond me how he qualified for a loan. I
have to assume that the lender was opportunistic.
The interest rate is 15.9% and the incidental charges for late
payments etc. are
astronomical. $250.00 to $400.00 for infraction or actions. The
list is long and insane.
I think Arnold made a couple of payments at the beginning. And non
since.
As of now the mortgage company wants to foreclose on the property
and has listed the property for sale and I am
told, has three offers as of last week.
The saving grace for the moment, at least, has been that the
neighbour leased the land for
pasture a couple months prior and has registered a land use caveat.
against the property until March 31/ 2015, with government of
Manitoba.
The land use caveat is dated and registered before the mortgage is
registered.
The neighbor does not want to give up the land until then.
But the mortgage company is pressuring the neighbor to buy the land
even at a discounted price. I told the neighbour not to negotiate with
the mortgage company and only stick to his lease agreement. (At
least
to hold the mortgage company off as long as possible, to give me time
to deal with this matter.)
I remember from high school law that for
person's signature to be binding on a contract he has to be mentally
competent. I also know that in order for a person to qualify for a
mortgage, he has to have good credit rating and be employed or have
the
financial means to make payments and pay for the mortgage.
From what I
understand, these criteria are and can only be common sense and
therefore are or have to be common law, also. My evaluation of the
situation is that the lender was opportunistic and saw that there was
sufficient collateral and they would be safe. So they gave him the
$50,000. I also suspect that the lender thought that the property
could
potentially be worth more. To me, at least based on common sense
and
common law, this mortgage agreement is clearly fraudulent and
therefore
null and void and unenforceable. It is an instrument of fraud. No
honest person or principled person or no one in their right mind would
give Arnold a loan.
They might be safe with a $10 or $20 loan.
Giving Arnold a mortgage or loan with the farm as collateral is not
unlike taking candy from a baby. I need to and have to deal with
this
matter only by letter. I have to give them a good scare.
I want to
tell the mortgage company that: - they did not properly qualify
Arnold
before giving him the loan, for the reasons I specified.
1. - their
mortgage agreement with Arnold is clearly opportunistic and therefore
unlawful and an instrument of fraud.
2. - to permanently cease and desist
all foreclosure actions and leave Arnold and the property alone
and not
to come near him or the property for a 100 miles.
3. - no honest or
principled person or lender would give Arnold a loan especially
with the
farm used as collateral.
4. I want to tell the mortgage company that
doing what they did to Arnold is not unlike taking candy from a baby.
5. - they should be ashamed of themselves. - if they want to help
such a
person in need that they should give him a donation of $50,000, and
give him guidance and therapy, not a loan. - their activities,
motives, and principles are clearly fraudulent and I will send the
authorities after them and have them investigated.
6. -they are loan sharks and should all be
put in jail.
I want to know what are the legal criteria under common
law, to make a signature legally binding on a contract,
expecially in a
case like this? And the criteria necessary to make such a situation
lawful? And anything else I should know? I want to know what you
think of this matter and what you would do if you were in my (or our-
Arnold and I) shoes to have this matter handled and save Arnold and
the
farm?
I forgot to mention that Arnold does work part time and seasonal,
but it can't be said that he has steady income. Right now he has a
summer job and is working for the Manitoba department of hwys
operating
an asphalt packer.
_______________________________________________
Trom mailing list
[email protected]
http://lists.newciv.org/mailman/listinfo/trom
