Bryan Whealen

Following a successful motion by the defendants to set aside a default judgment on an unpaid mortgage debt due to ineffective service, both parties made written submissions regarding costs.

The self-represented defendants sought $2,600, while the plaintiff sought $1,000.

The court considered the circumstances and determined that a fair and reasonable disposition was to make no order as to costs.

The plaintiff mortgagee brought a motion for summary judgment against the defendant insurer to recover the shortfall on a mortgage following a fire at the insured property and a subsequent power of sale.

The insurer denied the claim, arguing the mortgagee was only entitled to the actual cash value of repairs and had failed to file a timely proof of loss.

The court granted summary judgment, holding that the standard mortgage clause created a separate contract between the mortgagee and insurer, entitling the mortgagee to recover its shortfall regardless of the mortgagor's actions or the lack of repairs.

The defendants brought a motion seeking leave and an order requiring a corporate plaintiff to post security for costs in a construction lien action.

Although the court accepted that the defendants had established grounds under Rule 56.01(1)(d) of the Rules of Civil Procedure and that the plaintiff had not proven impecuniosity with sufficient evidence, the court exercised its discretion to refuse security for costs.

The motion had been brought after significant unexplained delay, the defendants had not complied with earlier court-ordered undertakings, and their counterclaims arose from the same facts and were substantially larger than the plaintiff’s claim.

These factors militated against granting security for costs.

The motion was therefore dismissed.