Digest: Primewest Mortgage Investment Corp. v Antonenko, 2018 SKQB 259

DateSeptember 18, 2019

Reported as: 2018 SKQB 259

Docket Number: QB18250 , QBG 1738/16 JCS

Court: Court of Queen's Bench

Date: 2019-09-18

Judges:

  • Elson

Subjects:

  • Civil Procedure � Queen�s Bench Rules, Rule 7-2
  • Civil Procedure � Summary Judgment
  • Contracts � Non Est Factum
  • Contracts � Unconscionability
  • Foreclosure � Order Nisi

Digest: The plaintiff mortgage corporation applied for an order nisi for sale by real estate listing on two residential properties. One property was the residence of two defendants, T. and G., and the other property was the residence of another defendant, L., who was T.�s mother. The defendants were the mortgagors of their properties. T. and G. sought to renew the mortgage on their home and add an additional $40,000 to the mortgage. The plaintiff did not approve the application, so L. also applied and offered to mortgage her property for T. and G. The mortgage as initially prepared was not pursued, but a new arrangement was agreed upon. A new cost of borrowing disclosure statement was sent to each of the three mortgagors. The mortgage document was signed by all three mortgagors and the word �Mortgage� was on the front of the document in bold print. The mortgage term was one year. After expiration, the mortgagors sought renewal as well as an increase to the loan. An additional $45,000 was provided in return for a promissory note. All three mortgagors signed an offer of financing letter, cost of borrowing disclosure statement, and a promissory note for the $45,000. L. denied that she had any knowledge of a mortgage being registered on her property. When the mortgage matured on October 1, 2016 it was in arrears in the amount of $10,160. Leave was granted to the plaintiff to commence the action for foreclosure on May 17, 2017. The mortgagors� defences to the application for summary judgment were: 1) non est factum, with respect to the mortgage on L.�s property. The mortgagors argued that L. only agreed to guarantee or co-sign the debt of T. and G., such understanding never being corrected by the solicitor representing them; and 2) the loan transaction was unconscionable.
HELD: The court was satisfied that the plaintiff�s application must succeed because there was no genuine issue for trial. The mortgagors must deal with any issues they had with their mortgage broker and/or solicitor directly with them. A number of affidavits were filed, but there were really no facts in dispute between the mortgagors and the
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