M. Wainberg

The plaintiffs moved for leave to issue a Certificate of Pending Litigation (CPL) against a mortgage held by the defendant on a property sold to a third party.

The plaintiffs alleged that the defendant was overpaid upon the discharge of prior mortgages and claimed a trust interest in the new mortgage.

The court dismissed the motion, finding that while a claim to a mortgage may constitute an interest in land, the equities weighed heavily against granting a CPL due to the plaintiffs' significant delay, prior acknowledgments of the debt, and inability to satisfy a potential damages award.

Following judgment in a residential construction dispute, the successful homeowners sought a costs award of over $26,000 on a partial indemnity basis.

The builder argued it achieved greater success because most of the claims were dismissed and only a small portion of the damages sought was awarded.

The court noted the modest damages award fell well within the monetary jurisdiction of the Small Claims Court and that the matter could have proceeded under the Simplified Procedure rules after the lien action settled.

The court also found several claims advanced by the homeowners lacked merit and unnecessarily lengthened the trial.

Exercising its discretion under Rule 57.05 and Rule 76.13(3), the court ordered that each party bear its own costs.