New Haven Mortgage Corporation v. Delson
The appeal was dismissed because there was no evidence the appellants' dispute with their former lawyer affected the mortgagees' conduct or would enable repayment of the roughly $830,000 due; the appellants knew of the writs prior to the advance, the solicitor dispute only concerned about $40,000, and the appellants...
Source-derived case information.
- Citation
- 2019 ONCA 102
- Parties
- Respondent: New Haven Mortgage Corporation; Respondent: Filomena Muraca; Appellant: Malka Delson; Appellant: Robert Delson
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 13 February 2019
- Procedural Posture
- Collection / Appeal
- Outcome
- Appeal dismissed
- Legal Topics
- Mortgage Enforcement, Equitable Relief, Professional Negligence (solicitor), Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
New Haven Mortgage Corporation
Respondent
Filomena Muraca
Respondent
Malka Delson
Appellant
Robert Delson
Appellant
Procedural Posture
Collection / Appeal
Legal Issues
- 1 Whether appellants' dispute with their former lawyer prevents enforcement of the mortgage
- 2 Whether there are equitable grounds to restrain enforcement of the mortgage
- 3 Whether appellants' conduct (knowledge of writs, non-payment) bars equitable relief
Ratio Decidendi
The appeal was dismissed because there was no evidence the appellants' dispute with their former lawyer affected the mortgagees' conduct or would enable repayment of the roughly $830,000 due; the appellants knew of the writs prior to the advance, the solicitor dispute only concerned about $40,000, and the appellants had ceased payments since early 2018, so no equitable basis existed to prevent enforcement.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
1 paragraphs
New Haven Mortgage Corporation v. Delson Collection Decisions of the Court of Appeal Date 2019-02-13 Neutral citation 2019 ONCA 102 Docket numbers C66371 Judges Sharpe, Robert J.; Benotto, Mary Lou; Brown, David M. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: New Haven Mortgage Corporation v. Delson, 2019 ONCA 102 DATE: 20190213 DOCKET: C66371 Sharpe, Benotto and Brown JJ.A. BETWEEN New Haven Mortgage Corporation and Filomena Muraca Plaintiffs (Respondents) and Malka Delson and Robert Delson Defendants (Appellants) J. David Sloan, for the appellants Matthew Wise and Jordan Kamenetsky, for the respondents Heard and released orally: February 8, 2019 On appeal from the judgment of Justice Mario D. Faieta of the Superior Court of Justice, dated December 18, 2018. REASONS FOR DECISION [1] The appellants admit the mortgage debt, but contend the financial difficulties that prevent them from paying the mortgage debt are due to the improper actions of the lawyer who acted for them on the placement of the mortgage. [2] There is no evidence that the appellants’ dispute with their former lawyer has anything to do with the conduct of the respondent mortgagees in advancing the mortgage funds or seeking to enforce the mortgage. Moreover, the dispute with their former lawyer only relates to the use of about $40,000 from the mortgage proceeds to discharge certain writs registered against title. Prior to the advance of the mortgage funds, the appellants knew the writs were registered on title. As well, they offer no reasonable explanation as to how resolving that claim against their lawyer will enable them to pay the approximately $830,000 now due under the mortgage. Finally, the appellants have not made any payments under the mortgage since early 2018. [3] In those circumstances, we agree with the motion judge’s conclusion that there is no equitable basis to prevent the enforcement of the mortgage. [4] The appeal is dismissed. [5] The respondent does not request any costs, so there will be no order as to costs. “Robert J. Sharpe J.A.” “M.L. Benotto J.A.” “David Brown J.A.”