Natalie Marconi

The plaintiff bank brought a summary judgment motion to recover amounts owing under a revolving operating loan, a small business loan, business credit cards, personal guarantees, and a personal credit card.

The defendants argued that the action should proceed to trial because the bank had allegedly misrepresented that they need not act to recover business assets seized by the landlord, giving rise to a defence, setoff, and counterclaim in negligent misrepresentation.

The court held there was no genuine issue for trial, finding the landlord's distress had priority over the bank's security, the defendants could not lawfully remove the assets, no actionable misrepresentation was made, there was insufficient evidence of asset value, and the contractual documents expressly relieved the bank from any obligation to realize on the collateral before enforcing the debt.

The summary judgment motion was granted, the counterclaim was dismissed, and the personal credit card reward points claim also failed.

The plaintiff bank brought a motion for summary judgment seeking recovery of $46,784.11 after it mistakenly credited mortgage payments drawn from a frozen bank account and later discharged the mortgage based on an incorrect payout statement.

The court held that the discharge of the mortgage did not extinguish the underlying debt, and allowing the defendants to retain the benefit of the bank’s mistake would constitute unjust enrichment.

The defendants’ argument based on the maxim ex turpi causa non oritur actio was rejected, as the bank’s breach of the freeze order was inadvertent and did not bar enforcement of the debt.

However, the court declined to rectify the land titles register to reinstate the mortgage because the parties could not be restored to their original position and the requested third mortgage would prejudice other mortgagees who were not parties to the proceeding.

Judgment was granted for the debt, and the defendants’ counterclaim was dismissed.

The bank brought summary judgment motions to enforce two small business loans and related personal guarantees arising from franchise purchases.

The borrowers admitted receiving the funds and failing to repay but attempted to amend their pleadings to assert misrepresentation and unconscionability based on allegedly fraudulent financial information provided by third parties.

The court held that the proposed defenses were not viable, emphasizing that borrowers cannot rely on a lender to inform them of their own financial circumstances and that lack of independent legal advice is not a standalone defence where guarantors understood the agreements.

The relationship between lender and borrower was a normal commercial one with no vulnerability triggering unconscionability.

Summary judgment was granted for the bank for the outstanding loan, guarantee, and credit account amounts.

The appellant appealed the dismissal of his motion to set aside a default judgment for unpaid credit card debt.

He argued the motion judge erred in refusing his request for an adjournment, which he sought via an agent due to a family emergency.

The Court of Appeal held that the motion judge properly exercised his discretion in refusing the adjournment, noting that the motion judge had considered the merits of the appellant's claim and found no basis to set aside the default judgment.

The appeal was dismissed.

The appellant appealed from an order dismissing her motion to set aside a default judgment for fraud in relation to a loan.

The Court of Appeal upheld the motion judge's findings that the appellant failed to provide a satisfactory explanation for her failure to appear, failed to adequately explain her delay in moving to set aside the judgment, and failed to demonstrate an arguable defence.

The appeal was dismissed with costs.

Following the granting of summary judgment for a lender enforcing personal guarantees, the court determined the appropriate costs award.

The moving party sought substantial indemnity costs relying on contractual terms in the guarantee requiring payment of legal costs on a solicitor-and-own-client basis.

The court also found that the responding party attempted to mislead the court by manufacturing evidence regarding the circumstances of the guarantee.

Considering Rule 57.01 of the Rules of Civil Procedure and the principles governing fair and reasonable cost awards, the court granted substantial indemnity costs in the amount sought.