Xceed Mortgage Corporation v. Evans

Xceed Mortgage Corporation v. Evans

The motion judge properly granted summary judgment because the appellant's claims were unsupported by evidentiary material and did not disclose a genuine issue for trial; the correct comparison for improvident sale was the mortgage advance ($350,000) not the face amount ($364,000), the sale price ($337,000) fell within comparable sales, and the motion judge did not shift the burden of proof.

Citation
2008 ONCA 175
Parties
Plaintiffs (respondents): Xceed Mortgage Corporation and Xceed Funding Corporation; Defendant (appellant): Dianne Evans
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
11 March 2008
Procedural Posture
Civil Appeal From Summary Judgment (collection/mortgage Enforcement) / Court of Appeal Decision on Appeal From Motion for Summary Judgment
Outcome
Appeal dismissed
Legal Topics
Summary Judgment, Agency Law, Non Est Factum, Independent Legal Advice, Unconscionability, Improvident Sale, Burden of Proof, Mortgage Enforcement
Source Language
English
Civil Collection Mortgage Property Equity Summary Judgment Agency Law Non Est Factum +5 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 5 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Xceed Mortgage Corporation and Xceed Funding Corporation

Plaintiffs (respondents)

Dianne Evans

Defendant (appellant)

Procedural Posture

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

Legal Issues

  1. 1 Whether the appellant's allegations of mortgage broker agency and misrepresentation disclose a genuine issue for trial
  2. 2 Whether non est factum and absence of independent legal advice were pleaded with sufficient evidentiary material to defeat summary judgment
  3. 3 Whether the lenders' fee was unconscionable and whether the sale of the property was improvident

Ratio Decidendi

The motion judge properly granted summary judgment because the appellant's claims were unsupported by evidentiary material and did not disclose a genuine issue for trial; the correct comparison for improvident sale was the mortgage advance ($350,000) not the face amount ($364,000), the sale price ($337,000) fell within comparable sales, and the motion judge did not shift the burden of proof.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs to the respondents fixed in the amount of $4,500.00 inclusive of disbursements and Goods and Services Tax.