Michael A. Katzman

The defendants sought an injunction restraining execution of a writ of possession arising from a mortgage default judgment.

They argued enforcement should be delayed while they pursued refinancing and separate litigation concerning a third mortgage that allegedly prevented refinancing.

The court held the defendants failed to establish a serious issue to be tried or identify any legal right being interfered with, as the plaintiffs held a valid judgment for possession and there was no existing forbearance agreement.

The alleged harms from eviction were compensable in damages and did not justify injunctive relief.

The motion was dismissed and costs were awarded to the plaintiffs.

The appellants appealed a summary judgment regarding monies owing on a second mortgage, arguing the motion judge erred in her treatment of the burden of proof, the interests of justice under Rule 20.04(2.1), and the finding of no genuine issue requiring a trial.

The Court of Appeal dismissed these grounds, finding the evidence insufficient to establish an agreement terminating liability upon giving up possession of the house.

The court also dismissed an application to introduce fresh evidence under the Palmer test.

However, the court allowed the appeal in part, reducing the judgment by $6,705.58 due to a lack of evidence supporting awards for service of notices of sale and additional legal fees.