In a recent Ontario decision, upheld on appeal, a judge found, in part, that a mortgagor was attempting to use the COVID-19 moratorium on evictions to avoid a previously ordered writ of possession.
The mortgage at issue was dated May 31, 2016, given by the mortgagor and his then spouse. The original term was for two years. It was a second mortgage.
Default in payment on the mortgage occurred on July 1, 2018 and continued. Property taxes were in arrears in the sum of $29,562, a further event of default under the mortgage.
The mortgage matured on June 1, 2019 and had not been discharged.
The mortgagee issued a statement of claim on August 22, 2018, seeking judgment for payment of the amounts owing and possession. The mortgagors did not defend the action and default judgment issued on February 12, 2019, for the sum of $218,025 plus interest and for possession of the mortgaged property and costs.
A writ of possession was issued on April 26, 2019.
The mortgagor later brought a motion to set aside the default judgment, which was dismissed on July 23, 2019.
The writ of possession was enforced and the mortgagee took possession on January 8, 2020. The mortgagor was asked to remove his personal belongings. He did not do so and the belongings were placed in storage by the mortgagee. The mortgagor was not then living in the property, having separated from his spouse. She agreed to leave the property.
The mortgagee entered into an agreement of purchase and sale of the property with a closing date set for May 12, 2020. The proposed purchasers sold their property in anticipation of acquiring this new home.
The mortgagee discovered that the locks had been changed by the mortgagor on or about April 4, 2020; it appeared that the mortgagor had asserted a right to possession of the property despite the judgment and the writ of possession. He broke the existing locks on the property to obtain entry. The mortgagee changed the locks again but discovered that the mortgagor changed them a second time.
Lower Court Decision
The mortgagee sought a further writ of possession and removal of the mortgagor from the property.
The mortgagor sought an order staying mortgage enforcement proceedings, setting aside the default judgment, and discharging the mortgage upon payment into court.
On April 30, 2020, the court dismissed the mortgagor’s motion and granted the mortgagee’s motion.
The court concluded that there was no merit to the mortgagor’s position, that he was stalling to take advantage of the temporary suspension of evictions resulting from the COVID-19 pandemic, that he unlawfully broke into the premises, and that his claim to pay $190,388 into court was disingenuous. The judge doubted that he had the funds available or that they would be sufficient to discharge the amount now owing, estimated at $240,000 plus the unpaid costs from the refusal of the motion to set aside the default judgment.
The mortgagor sought a stay pending appeal of enforcement of a writ of possession. He proposed to appeal from that decision and also sought an extension of the time to appeal from a July 23, 2019 decision of the Superior Court refusing to set aside default judgment against him.
Court of Appeal Decision
The court found that there was no evidence the mortgagor had intended to appeal within the relevant period. It found that the delay, close to ten months, was substantial and there was no explanation for it, in particular because the mortgagor was a former practicing lawyer and would have been aware of the importance of acting promptly, while the prejudice to the mortgagee was substantial.
Additionally, the court found no error in the lower court’s exercise of discretion to refuse to stay enforcement of the writ of possession.
As a result, the Court of Appeal dismissed the mortgagor’s requests.
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