Tuxedo Mortgage Investment Corporation v. Pull

Tuxedo Mortgage Investment Corporation v. Pull

The Registrar held the written Commitment Letter and Letter of Authorization control; the $5,000 was treated as a lender set-up/part of commitment fees and refundable only if the mortgage was in good standing on discharge; there was no enforceable collateral oral agreement varying the written terms; the Business Practices and Consumer Protection Act did not invalidate the fee as charged to InstaFund and is not adjudicable against the petitioner here; the petitioner’s monthly compounded interest accounting and inclusion of protective disbursements is correct, yielding a certified amount due of $524,992.65 as of April 8, 2011 and a per diem of $111.47.

Citation
2011 BCSC 561
Parties
Petitioner: Tuxedo Mortgage Investment Corporation; Respondent: Frances Anne Pull; Respondent: The Crown in Right of British Columbia
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
2 May 2011
Procedural Posture
Mortgage Foreclosure / Reference to Registrar to Determine Amount Due Under Order Nisi Following Foreclosure Proceedings
Outcome
Reference determined and amount due certified: $524,992.65 as of April 8, 2011 inclusive of principal, interest and protective disbursements; per diem of $111.47.
Legal Topics
Redemption Amount, Commitment Fee, Collateral Contract, Fee Legality Under Business Practices and Consumer Protection Act, Accounting of Mortgage Interest and Disbursements
Source Language
English
Mortgage Law Foreclosure Contract Law Consumer Protection Civil Procedure Redemption Amount Commitment Fee Collateral Contract +2 more

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Parties

Tuxedo Mortgage Investment Corporation

Petitioner

Frances Anne Pull

Respondent

The Crown in Right of British Columbia

Respondent

Procedural Posture

Mortgage Foreclosure / Reference to Registrar to Determine Amount Due Under Order Nisi Following Foreclosure Proceedings

Legal Issues

  1. 1 Whether a $5,000 cash payment made to the mortgage arranger must be credited or refunded to the borrower
  2. 2 Whether an alleged oral collateral agreement varied the written Commitment Letter
  3. 3 Whether the Business Practices and Consumer Protection Act invalidates the fee charged or requires refund

Ratio Decidendi

The Registrar held the written Commitment Letter and Letter of Authorization control; the $5,000 was treated as a lender set-up/part of commitment fees and refundable only if the mortgage was in good standing on discharge; there was no enforceable collateral oral agreement varying the written terms; the Business Practices and Consumer Protection Act did not invalidate the fee as charged to InstaFund and is not adjudicable against the petitioner here; the petitioner’s monthly compounded interest accounting and inclusion of protective disbursements is correct, yielding a certified amount due of $524,992.65 as of April 8, 2011 and a per diem of $111.47.

Court Disposition

Reference determined and amount due certified: $524,992.65 as of April 8, 2011 inclusive of principal, interest and protective disbursements; per diem of $111.47.

Orders

  • The amount of money due and owing under the Mortgage and the amount required to redeem the Lands is certified at $524,992.65 as of April 8, 2011 inclusive of principal, interest and protective disbursements.
  • Per diem interest to be added to the certified amount is $111.47.