Bank of Montreal v. Zomparelli

Bank of Montreal v. Zomparelli

The motion judge did not err: the record showed one payment was credited and there was no evidence the other payment was made, the costs issue had been directed to assessment by another judge and any dispute about that outcome was not before the Court of Appeal, therefore there was no genuine issue for trial on the counterclaim and the appeal is dismissed.

Citation
2008 ONCA 393
Parties
Plaintiff (defendant in Counterclaim) (respondent on Appeal): Bank of Montreal; Defendant (plaintiff in Counterclaim) (appellant): Rosetta Zomparelli
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
20 May 2008
Procedural Posture
Civil Appeal From Summary Judgment (collection) / Court of Appeal Decision on Appeal From Motion for Summary Judgment
Outcome
Appeal dismissed.
Legal Topics
Summary Judgment, Counterclaim, Power of Sale, Costs, Assessment
Source Language
English
Civil Collection Appellate Procedure Mortgage/power of Sale Civil Remedies Summary Judgment Counterclaim Power of Sale +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 1 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Bank of Montreal

Plaintiff (defendant in Counterclaim) (respondent on Appeal)

Rosetta Zomparelli

Defendant (plaintiff in Counterclaim) (appellant)

Procedural Posture

Civil Appeal From Summary Judgment (collection) / Court of Appeal Decision on Appeal From Motion for Summary Judgment

Legal Issues

  1. 1 Whether the motion judge erred in concluding there was no genuine issue for trial on the counterclaim
  2. 2 Whether the Bank failed to credit two alleged $25,000 principal payments
  3. 3 Whether the Bank should repay $14,000 in costs related to the exercise of the power of sale

Ratio Decidendi

The motion judge did not err: the record showed one payment was credited and there was no evidence the other payment was made, the costs issue had been directed to assessment by another judge and any dispute about that outcome was not before the Court of Appeal, therefore there was no genuine issue for trial on the counterclaim and the appeal is dismissed.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed.
  • Costs of the appeal including costs before Justice Sproat and in the Divisional Court fixed at $8,500 including disbursements and GST payable by the appellant to the respondent Bank of Montreal.