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Collateral Mortgage can Cause Collateral Damage

Posted by Milana Cizmar on August 12, 2011

When you apply for a mortgage, you usually just ask about the term, amount, interest rate and monthly payment.  Not many people understand the difference between a conventional mortgage and a collateral mortgage. Yet many banks are now asking borrowers to sign collateral mortgages. The result is that you can be tied to this bank, for life.

With a normal conventional mortgage you bargain for a set amount, rate and amortization. Say the property is worth $250,000, you bargain for a $200,000 loan, at 3.5%, 5 year term/25 year amortization, payments of $998.54/month. A conventional mortgage is registered against the property for $200,000.00 and if all the payments are made on time, the mortgage is renewed on the same terms every 5 years and no prepayments are made, the balance is zero after 25 years. Should another lender decide to lend you money as a second mortgage, there is nothing stopping them from doing so, subject to their own guidelines. Under normal circumstances the principal balance on a conventional mortgage goes only one way, down. In addition, banks will accept “transfers” of conventional mortgages from other banks, at little or no cost to the consumer.

A collateral mortgage has as its primary security a promissory note or loan agreement and as “back-up”, a collateral security, being a mortgage against your property. The difference is that the mortgage will be for, in most cases, 125% of the value of the property. In our example, the mortgage registered will be for $312,500. But you will only receive $200,000. The loan agreement will indicate the actual amount of the loan, interest rate and monthly payments.

The collateral mortgage may indicate an interest rate of prime plus 5-10%. This will permit you to go back to this same bank and borrow more money from time to time, without having to register new security.  The lender will offer you a closing service, to register the mortgage against your property, at fees that will be cheaper than what a lawyer would charge you. Sounds good so far, doesn’t it.

However, this collateral loan agreement has much different consequences, which are usually not explained to the borrower.

1)Most banks will not accept “transfers” of collateral mortgages from other banks, so the consumer is forced to pay discharge fees to get out of one mortgage and additional fees to register a new mortgage if they move to a new lender. Thus the bank is able to tie you up to them for all your lending needs indefinitely, because it will cost you too much to move.

2) Secretly grabbing more security than you intended to give. Lenders may be able to use the collateral mortgage to offset any other unpaid debts you have. Offset is a right under Canadian law that says a lender may be able to seize equity you have in your home over and above the mortgage balance, to pay, for example, a credit card balance, a car loan, or any loan you may have  cosigned that is in default with  the same lender. In essence any loans you may have with that lender may be secured by the collateral mortgage. Nobody goes into a mortgage thinking about default, but “stuff” happens in people’s lives and 25 years is a long time.

3) Let’s say your house value is $200,000.00, Collateral first mortgage registered on the property is $250,000.00. The amount owing on the mortgage is $150,000.00. If you were to need an additional $20,000.00, but the lender declines to lend the $20,000.00 for any reason, then practically speaking, you won’t be able to approach any other lender. They will not go behind a $250,000 mortgage. Your only way out would be to pay any prepayment penalty to get out of the first mortgage & pay any additional costs to get a new mortgage.

4) Let’s say your mortgage is in good standing but you default under a credit line with the same bank. The bank could in most cases still start default proceedings under your mortgage, meaning you could lose the house.

5)Not advising the consumer of the details of the contract they are entering. Some lenders are offering collateral mortgages in a “negative option billing” manner. Unless you are informed enough to say you want a conventional mortgage, you will be asked to sign documents for a collateral mortgage. One bank is only offering collateral mortgages.

I spoke with David O’Gorman, the president and principal mortgage broker with MortgageLand Inc. David tells me that it his duty under the law to ensure the “suitability” of any mortgage he arranges for a consumer. He would be hard pressed to justify the recommendation of this type of collateral first mortgage to any consumer, without disclosing both verbally and in writing the points listed above, and he believes the consumer should have their own lawyer review everything before they sign.

Lending money to people, without proper explanation of the consequences, is wrong. The banking regulators need to look into this practice and stop it. In the meantime, do not sign any mortgage document without discussing it first with your own lawyer.

Mark Weisleder is a lawyer, author and speaker to the real estate industry. If you have any questions about real estate issues, email mark at [email protected]

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