The plaintiff bank moved for summary judgment against a guarantor spouse seeking payment under a personal guarantee and possession of the mortgaged property securing the debt.
The responding guarantor argued that the guarantee and subsequent collateral mortgage were unenforceable due to non‑disclosure, misrepresentation, undue influence by her spouse, lack of proper independent legal advice, and unconscionability.
The court held that the bank satisfied its obligations by requiring independent legal advice and had no duty to investigate the adequacy of that advice where authentic letters were provided.
Although the marital relationship raised a presumption of undue influence, the bank rebutted the presumption through the guarantor’s repeated acknowledgments of independent legal advice and voluntary execution of the agreements.
Summary judgment was granted for the bank for the guaranteed amount and possession of the property, but leave to issue a writ of possession was denied pending better evidence regarding actual possession of the property.
