Valley First Credit Union v. Lucente

2002BCSC0072 Citation: Valley First Credit Union v. Lucente Date: 20020116 2002 BCSC 72 Docket: 28890 Registry: Vernon IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: VALLEY FIRST CREDIT UNION PETITIONER AND: ROCCO WALLACE LUCENTE AND BARBARA LUCENTE RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE BLAIR (IN CHAMBERS) Counsel for Petitioner S.D. Dvorak Respondents appearing on their own behalf Date and Place of Hearing: January 10, 2002 Kamloops, BC [1] The Valley First Credit Union ("the Credit Union") forecloses under the terms of a mortgage granted by Rocco Wallace Lucente and Barbara Lucent against their home located in Armstrong. [2] Mr. and Mrs. Lucente borrowed $151,905 from the Credit Union on January 24, 1997, with the loan secured by a mortgage filed in the Kamloops Land Title Office on January 31, 1997, under number KL9627. After the parties on April 17, 2000, modified and extended the mortgage agreement, Mr. and Mrs. Lucente encountered financial difficulties and on September 22, 2000, the Credit Union commenced foreclosure proceedings under Vernon Registry number 26152. Mr. and Mrs. Lucente sought relief from foreclosure under the Law and Equity Act, R.S.B.C. 1996, c. 253. [3] Mr. Justice Brooke, on October 27, 2000, adjourned the foreclosure application on terms and the matter came before me on April 23, 2001, when I dismissed the foreclosure application and granted relief from forfeiture pursuant to the Law and Equity Act, providing the parties an opportunity to reach an agreement with regard to the arrears and costs payable by Mr. and Mrs. Lucente. On June 4, 2001, the parties appeared before me and as a result I ordered the terms upon which the mortgage was to be brought into good standing. [4] Mr. and Mrs. Lucente complied with the payment terms until September, 2001, when default again occurred both on the terms of my June 4, 2001, Order and under the mortgage. The Credit Union, on October 26, 2001, commenced foreclosure proceedings under Vernon Action number 28890 and the matter came before me on January 10, 2002. [5] Mr. Lucente sought an adjournment of the foreclosure to provide him with the opportunity to retain counsel. The Credit Union filed its petition on October 26, 2001, and Mr. Lucente filed an appearance on November 13, 2001. The Credit Union consented to the adjournment sought by Mr. Lucente from the original hearing date in December 2001. I find Mr. and Mrs. Lucente have had ample opportunity to seek and obtain counsel and deny the adjournment application. [6] I reserved decision on the foreclosure application to consider Mr. and Mrs. Lucente's submission that the foreclosure proceedings ought to be stayed or referred to the trial list. [7] In his material filed January 10, 2002, Mr. Lucente submits that he, Rocco Wallace Lucente, is a separate and distinct legal subject from the natural person known as :Rocco-Wallace :Lucente. The significance of the distinction appears to be of importance to Mr. Lucente. I am satisfied that the person appearing before me on January 10, 2002, was the respondent, Rocco Wallace Lucente, and I will refer to him throughout as Mr. Lucente. [8] Mr. and Mrs. Lucente's approach to the present foreclosure application differs significantly from their position on the previous foreclosure when they sought and obtained relief on the basis of financial hardship. Mr. Lucente advised that on the basis of advice they received from Timothy Paul Madden, also referred to as Timothy-Paul :Madden, a consulting financial economist, he and Mrs. Lucente dispute the validity of the mortgage and their obligations under it. [9] In their material Mr. and Mrs. Lucente rely on legislation apparently enacted in Florida and California in the United States as well as a statute referred to as the Truth In Lending Law, the origin of which is not revealed. I am satisfied that neither the latter statute nor the U.S.-based legislation has any force in British Columbia. Mr. Lucente advised that relying on the advice he received from Mr. Madden he is satisfied that he and his wife never received the funds promised under the mortgage and the Credit Union had no claim against them. Mr. Lucente was unable to explain the basis of Mr. Madden's advice. [10] Mr. Lucente advised that on November 21, 2001, Mr. Madden swore an Information in the Provincial Court of British Columbia alleging that the Credit Union had with intent to defraud and by false pretences induced Mr. and Mrs. Lucente to execute the mortgage agreement. The information came before His Honour Judge Gould in Nanaimo on December 21, 2001, and the transcript of proceedings indicates Mr. Madden sought and obtained an adjournment to January 23, 2002. [11] Mr. Lucente submitted that with the commencement of the criminal action, the Credit Union was no longer in a position to pursue its foreclosure action pending resolution of the criminal charges. I do not accept that the mere swearing of an Information, absent any further material to support the bare allegations contained in the Information, should have the effect of staying the foreclosure action as suggested by Mr. Lucente. [12] Although Mr. Lucente submits that the Credit Union has no valid claim under the mortgage, he also delivered to the Credit Union a certified promissory note in the amount of $162,782.96 in accord and satisfaction of the Credit Union's claim under the terms of the mortgage. Mr. Lucente submitted that the promissory note satisfies the Credit Union's demand and it has no further claim against him. The Credit Union declined to accept the promissory note as satisfaction for the monies owing under the mortgage and pursues the foreclosure action. I conclude the Credit Union was entitled to refuse the promissory note tendered and pursue the foreclosure action. [13] Upon receiving notification of the refusal to accept the promissory note, Mr. Lucente wrote on October 22, 2001, to Mr. Dvorak, counsel for the Credit Union, that the Credit Union's dishonouring of the offer permitted him to place Mr. Dvorak into involuntary bankruptcy and proceed with an equitable sale of Mr. Dvorak's property. I find such a proposition perplexing and unfortunately Mr. Lucente provided no basis for such action nor does his position appear to have any legal foundation in B.C. [14] In First City Development Corp. v. Cytrynbaum et al (1985), 62 B.C.L.R. 140 (B.C.S.C.), a foreclosure action, Mr. Justice Davies held that the respondent must raise triable issues on evidence contained in affidavits to have the foreclosure directed to proceed to trial. The material filed by Mr. Lucente contains allegations against the Credit Union, but lacks evidence sufficient to raise triable issues. [15] I conclude from the affidavit material filed in actions numbered 26152 and 28890 that the Credit Union has established that it obtained mortgage security from Mr. and Mrs. Lucente in return for the advancement of funds, that Mr. and Mrs. Lucente have acknowledged receipt of the funds from the Credit Union, that Mr. and Mrs. Lucente have enjoyed the benefit of the funds advanced by the Credit Union, and that they have defaulted in payments under the mortgage and the order of June 4, 2001. [16] I grant the Credit Union's application for an Order that the actions numbered 26152 and 28890 be joined for all purposes, under action number 28890. [17] I further grant the Credit Union an order nisi of foreclosure, but with a 30 day redemption period from the date of the filing of this judgment to provide Mr. and Mrs. Lucente the opportunity to appeal my Order. The shortened redemption period follows from the absence of equity held by Mr. and Mrs. Lucente in the home. At the conclusion of the redemption period, the Credit Union will have conduct of sale in the terms sought. The amount owing on the mortgage as of January 10, 2002, was $144,530.34 plus a per diem of $31.71. There will be personal judgment jointly and severally against Mr. and Mrs. Lucente. [18] The Credit Union will have its costs of this application at scale 2, plus the costs flowing from my Order dated June 4, 2001. "R.M.L. Blair, J." The Honourable Mr. Justice R.M.L. Blair