Bridgewater Bank v. Simms

Bridgewater Bank v. Simms

An order nisi of foreclosure was appropriate and granted with a one month redemption period, fixed redemption amount and immediate conduct of sale, but the petitioner's claim for a personal judgment against the bankrupt mortgagors was adjourned as premature because no deficiency exists until after foreclosure sale...

Source-derived case information.

Citation
2011 BCSC 303
Parties
Petitioner: Bridgewater Bank; Respondent: Arnold Jethrow Simms; Respondent: Karen Marie Simms; Respondent/trustee: Meyers Norris Penny Limited
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
14 March 2011
Procedural Posture
Foreclosure Application / Application for Order Nisi of Foreclosure
Outcome
Order nisi of foreclosure granted; claim for personal judgment against the Simms adjourned generally; costs awarded to petitioner at Scale A; redemption amount and per diem accepted; immediate conduct of sale granted.
Legal Topics
Deficiency Judgment, Redemption Period, Conduct of Sale, Bankruptcy Discharge, Proofs of Claim
Source Language
english
Bankruptcy Mortgage Law Foreclosure Secured Transactions Deficiency Judgment Redemption Period Conduct of Sale Bankruptcy Discharge +1 more

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Parties

Bridgewater Bank

Petitioner

Arnold Jethrow Simms

Respondent

Karen Marie Simms

Respondent

Meyers Norris Penny Limited

Respondent/trustee

Procedural Posture

Foreclosure Application / Application for Order Nisi of Foreclosure

Legal Issues

  1. 1 Whether mortgagors who maintained mortgage payments after assignment in bankruptcy are liable for a personal deficiency judgment
  2. 2 Whether it is premature to adjudicate a claim for personal judgment against bankrupt respondents prior to completion of foreclosure sale and realization of any deficiency
  3. 3 Whether a one month redemption period and immediate conduct of sale are appropriate

Ratio Decidendi

An order nisi of foreclosure was appropriate and granted with a one month redemption period, fixed redemption amount and immediate conduct of sale, but the petitioner's claim for a personal judgment against the bankrupt mortgagors was adjourned as premature because no deficiency exists until after foreclosure sale and realization of any shortfall.

Court Disposition

Order nisi of foreclosure granted; claim for personal judgment against the Simms adjourned generally; costs awarded to petitioner at Scale A; redemption amount and per diem accepted; immediate conduct of sale granted.

Orders

  • Declaration that petitioner's mortgage forms a first charge against the property
  • One month redemption period