Reported as: 2018 SKQB 118
Docket Number: QBG 346/17 JCS , QB17510
Court: Court of Queen's Bench
- Mortgages � Foreclosure � Application for Judicial Sale � Order Nisi � Amendment Statutes � Interpretation � Limitation of Civil Rights Act, Section 5
Digest: The plaintiff bank applied for an extension of the time for listing of property under an Order Nisi for Sale by Real Estate Listing. The plaintiff�s application for leave to commence an action for foreclosure was granted in May 2017. At that time, the plaintiff provided as an exhibit to its affidavit, a home appraisal estimating the value of the property at $140,000. The appraisal was based upon sales of properties located in areas distant from the mortgaged property. The defendants were served with the statement of claim and both were noted for default in June 2017. The Order Nisi was obtained in July 2017, setting a 20-day redemption period and a floor price of $114,750. In support of its application the plaintiff had provided an affidavit with an exhibit of a comparative market analysis prepared by a realtor, estimating the value of the property at $135,000. The plaintiff did not submit the qualifications of the realtor. Under the Order, the plaintiff had leave to make an offer to purchase the subject property. The plaintiff sought and obtained an order extending the listing for a further three months in December and amending the minimum price to $106,250 because another appraisal indicated that the estimated value had decreased again. In this application, the plaintiff sought an extension of six months and a reduction of the minimum sale price to $76,600. The opinion of value was provided by another realtor who stated that the land was worth only $95,000. No evidence was provided regarding which realtor had been responsible for the sale during the second listing period. HELD: The application was dismissed. The court reviewed the factors to be considered in an application to vary an Order Nisi for Sale by extending the time for sale and varying the terms of the order including the upset price. In applying the factors to the circumstances of this case, the court expressed concern that: 1) the plaintiff had sought and obtained the provision in the order to make offers to buy the land, but had not done so and failed to explain...