Xceed Mortgage Corporation v. Jesty

Xceed Mortgage Corporation v. Jesty

The defendant failed to establish evidentiary or legal basis to defeat the plaintiffs' claim; the plaintiffs advanced the funds and executed the mortgage, there is no proof Xceed is liable for the lawyer's conduct, and judgment is granted for Xceed with the defence and counterclaim struck to permit Xceed to proceed by default for foreclosure and sale; recoverable interest is reduced by fourteen months due to delay.

Citation
2013 NSSC 385
Parties
Plaintiffs (defendants by Counterclaim): Xceed Mortgage Corporation and Xceed Funding Corporation; Defendant (plaintiff by Counterclaim): Albert Jesty
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
29 November 2013
Procedural Posture
Mortgage Foreclosure and Sale / One Day Trial; Judgment; Order to Proceed by Default for Foreclosure
Outcome
Judgment for plaintiffs (Xceed); defence and counterclaim struck; plaintiffs entitled to proceed with foreclosure, sale and possession by way of default; recoverable interest reduced by 14 months; costs reserved for later decision.
Legal Topics
Foreclosure, Sale and Possession, Title Insurance, Agency, Misapplication of Funds, Counterclaim, Costs, Accruing Interest, Release of Mortgage
Source Language
English
Mortgage Property Civil Procedure Contract Agency/tort Foreclosure Sale and Possession Title Insurance +6 more

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Parties

Xceed Mortgage Corporation and Xceed Funding Corporation

Plaintiffs (defendants by Counterclaim)

Albert Jesty

Defendant (plaintiff by Counterclaim)

Procedural Posture

Mortgage Foreclosure and Sale / One Day Trial; Judgment; Order to Proceed by Default for Foreclosure

Legal Issues

  1. 1 Whether plaintiffs entitled to foreclosure, sale and possession following mortgage maturity and non-renewal
  2. 2 Whether plaintiffs are liable for alleged misapplication of mortgage advance by the closing lawyer
  3. 3 Whether the defendant established a defence or counterclaim arising from lack of surplus funds and loss of trucks

Ratio Decidendi

The defendant failed to establish evidentiary or legal basis to defeat the plaintiffs' claim; the plaintiffs advanced the funds and executed the mortgage, there is no proof Xceed is liable for the lawyer's conduct, and judgment is granted for Xceed with the defence and counterclaim struck to permit Xceed to proceed by default for foreclosure and sale; recoverable interest is reduced by fourteen months due to delay.

Court Disposition

Judgment for plaintiffs (Xceed); defence and counterclaim struck; plaintiffs entitled to proceed with foreclosure, sale and possession by way of default; recoverable interest reduced by 14 months; costs reserved for later decision.

Orders

  • Defendant's defence and counterclaim struck allowing plaintiffs to proceed by default for foreclosure and sale
  • Plaintiffs to file affidavits and supporting documents as required by Civil Procedure Rule 72 and Practice Memorandum No. 1 for uncontested foreclosures