Jaskolka v. Penney

Jaskolka v. Penney

No material facts were in dispute that funds were advanced and the Bedros Lane mortgage was in default; disputed quantum does not preclude summary judgment because the amount owing can be assessed under Rule 13.05; the second foreclosure is not barred by res judicata or abuse of process because the prior proceeding concerned a different mortgage (different cause of action) securing the same debt; therefore summary judgment is granted and the quantum is to be assessed.

Citation
2014 NSSC 400
Parties
Applicant/plaintiff: Alan Jaskolka; Applicant/plaintiff: Bonnie Jaskolka; Applicant/plaintiff: Bryan Jaskolka; Applicant/plaintiff: Klee Rogers; Respondent/defendant: Brian Penney; Respondent/defendant: Small Fortunes Inc.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
5 November 2014
Procedural Posture
Foreclosure and Sale Action (mortgage Enforcement) / Summary Judgment Motion (decision Granting Summary Judgment With Assessment of Quantum)
Outcome
Summary judgment granted; quantum to be assessed pursuant to Rule 13.05(2); parties to bear their own costs
Legal Topics
Summary Judgment, Deficiency Claim, Collateral Mortgage, Issue Estoppel, Cause of Action Estoppel, Assessment of Quantum, Interest Rate Dispute
Source Language
English
Mortgage Law Foreclosure Civil Procedure Equitable Remedies Res Judicata/abuse of Process Summary Judgment Deficiency Claim Collateral Mortgage +4 more

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Parties

Alan Jaskolka

Applicant/plaintiff

Bonnie Jaskolka

Applicant/plaintiff

Bryan Jaskolka

Applicant/plaintiff

Klee Rogers

Applicant/plaintiff

Brian Penney

Respondent/defendant

Small Fortunes Inc.

Respondent/defendant

Procedural Posture

Foreclosure and Sale Action (mortgage Enforcement) / Summary Judgment Motion (decision Granting Summary Judgment With Assessment of Quantum)

Legal Issues

  1. 1 Whether summary judgment should be granted on the foreclosure and sale action
  2. 2 Whether there is a genuine issue of fact regarding advance of funds and default under the mortgage
  3. 3 Whether disputed quantum prevents summary judgment or should be assessed separately

Ratio Decidendi

No material facts were in dispute that funds were advanced and the Bedros Lane mortgage was in default; disputed quantum does not preclude summary judgment because the amount owing can be assessed under Rule 13.05; the second foreclosure is not barred by res judicata or abuse of process because the prior proceeding concerned a different mortgage (different cause of action) securing the same debt; therefore summary judgment is granted and the quantum is to be assessed.

Court Disposition

Summary judgment granted; quantum to be assessed pursuant to Rule 13.05(2); parties to bear their own costs

Orders

  • Summary judgment granted in favour of the plaintiffs
  • Quantum owing to be assessed pursuant to Rule 13.05(2)