The Mortgage Instructions Toolkit provides practical guidance for lawyers responding to lender requests in residential real estate transactions. This page addresses changing lender instructions.

The situation

You need amended instructions from a lender when you cannot follow your current instructions. However, lenders may be reluctant to modify their boilerplate instructions (which may include a clause that instructions will not be changed), even if a person in their institution says a change can be made. With some lenders, it has become difficult to find a person with authority to discuss an instruction that is problematic.

Sample lender instructions

…lawyer is responsible for complying with these and any other instructions applicable to the transaction and ensuring that the security and related documents comply with them… funds must not be disbursed until you are satisfied that all matters referred to in this and any other instructions applicable to the transaction have been followed…

Practice Guidance

• Find the person within the lending institution with authority to change mortgage instructions. The mortgage processing centre’s purpose is to retain and instruct counsel for mortgages. Staff there may not have the authority to modify an instruction once made.
• Try approaching the broker who arranged the mortgage or the lending institution’s local branch to see if they have access to the appropriate instructing authority. A borrower who works frequently with a lender may be able to get a branch manager or other contact to connect you with the authority.
• Write to the lender, using the address in the lender instructions, and set out the problem with the instructions for the borrower and the transaction. Be precise about the terms that would work, and the impossibility of going forward without this change. Insist on new instructions, and ask the lender to highlight any changes that were made in the new instructions. You might consider stating in your correspondence that the forwarding of funds will confirm the lender’s acceptance of the changed instructions. However, if the lender instructions include a clause that their instructions cannot be varied, you must receive new instructions.
• When you are unable to get revised instructions from the lender, inform them in writing that you are not complying with “x” provision. Never complete the loan transaction or sign off on the transaction report to the lender when you have been unable to change instruction terms and have not complied with them.
• Consider investing in good software (PDF or OCR) that will enable you to compare different versions of a lender's instructions by highlighting any changes made.

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