Amison et al v. Baker et al

Amison et al v. Baker et al

The court found the Bakers failed to prove on the balance of probabilities any prior oral agreement or promise to forgive the debt that would vary the written mortgage; absent credible evidence of fraud sufficient to displace the written documents, the mortgage is valid and enforceable and the estate is entitled to...

Source-derived case information.

Citation
2004 BCSC 1686
Parties
Petitioner: Jill Amison; Petitioner: Royal Trust Corporation of Canada; Respondent: Peter David Baker; Respondent: Tracy Ann Baker; Respondent: Paul Johnson
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
16 December 2004
Procedural Posture
Enforcement of Mortgage / Foreclosure / Reasons for Judgment Following Trial
Outcome
Mortgage held valid and enforceable; judgment entered for the estate; order nisi of foreclosure granted with redemption period fixed at three months; parties may apply regarding remaining foreclosure order terms and costs if they cannot agree.
Legal Topics
Parol Evidence Rule, Enforceability of Written Mortgage, Forgiveness of Debt and Testamentary Intention, Foreclosure and Redemption, Fraudulent Misrepresentation
Source Language
english
Property Law Mortgage Law Contract Law Equity Wills and Estates Parol Evidence Rule Enforceability of Written Mortgage Forgiveness of Debt and Testamentary Intention +2 more

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Parties

Jill Amison

Petitioner

Royal Trust Corporation of Canada

Petitioner

Peter David Baker

Respondent

Tracy Ann Baker

Respondent

Paul Johnson

Respondent

Procedural Posture

Enforcement of Mortgage / Foreclosure / Reasons for Judgment Following Trial

Legal Issues

  1. 1 Whether an alleged prior oral agreement varied the written mortgage
  2. 2 Whether the Bakers had paid out or were otherwise discharged from the debt
  3. 3 Whether any promise to forgive the debt on the lender’s death was binding

Ratio Decidendi

The court found the Bakers failed to prove on the balance of probabilities any prior oral agreement or promise to forgive the debt that would vary the written mortgage; absent credible evidence of fraud sufficient to displace the written documents, the mortgage is valid and enforceable and the estate is entitled to judgment for the debt and an order nisi of foreclosure with a three month redemption period.

Court Disposition

Mortgage held valid and enforceable; judgment entered for the estate; order nisi of foreclosure granted with redemption period fixed at three months; parties may apply regarding remaining foreclosure order terms and costs if they cannot agree.

Orders

  • Judgment for the Estate of Adolph David Karenko against David Baker and Tracy Baker in the amount of $121,776.58 to August 30, 2004 (based on assumed calculation), with interest at $19.92 per day from August 30, 2004 to date of judgment.
  • Order Nisi of Foreclosure granted.