Digest: Raymore Credit Union v Olson, 2018 SKQB 226

• Date: August 18, 2019

Reported as: 2018 SKQB 226

Docket Number: QB18228 , QBG 626/18 JCR

Court: Court of Queen's Bench

Date: 2019-08-18

Judges:

• McMurtry

Subjects:

• Foreclosure � Farmland � Saskatchewan Farm Security Act
• Foreclosure � Procedure � Commence an Action

Digest: The plaintiff sought to commence an action to foreclose on the defendant�s equity of redemption in land. Therefore, the plaintiff requested an order pursuant to s. 11 of The Saskatchewan Farm Security Act (SFSA) declaring that s. 9(d) of the SFSA did not apply to the mortgage on the lands. The defendant argued that the mortgage was a nullity because the plaintiff did not obtain a proper non-owning spouse declaration in compliance with The Homesteads Act, 1989. He also argued that the plaintiff failed to obtain a home quarter waiver as required under s. 17 of the SFSA. The Farm Land Security Board (FLSB) concluded that there was no reasonable possibility that the defendant could meet his obligations under the mortgage because he did not have a reliable source of income. The plaintiff disagreed with the FLSB �s conclusion that the defendant was, nonetheless, making reasonable efforts to meet his obligations. The plaintiff further argued that the proper time to consider the defendant�s arguments was in the course of the action, not before it had been commenced.
HELD: The appeal court reviewed relevant case law and concluded that the defendant must bring his objections regarding the validity of the mortgage within the course of the action, not prior to its commencement. The court did not find that s. 19 applied because the defendant did not deny the debt owing to the plaintiff; he denied the validity of the mortgage. It would be necessary for the matter to proceed to trial to determine those issues. The court accepted the FLSB�s conclusion that there was no reasonable possibility the defendant could meet his obligations. The plaintiff was entitled to proceed with its action.

Statutes Considered:

• Homesteads Act, 1989, SS 1989-90, c H-5.1, s 7
• Homesteads Act, 1989, SS 1989-90, c H-5.1, s 44
• Saskatchewan Farm Security Act, SS 1988-89, c S-17.1, s 9(1)(d)
• Saskatchewan Farm Security...