Court of Appeal for Ontario

Date: 2019-02-13 Docket: C66371

Judges: Sharpe, Benotto and Brown JJ.A.

Between

New Haven Mortgage Corporation and Filomena Muraca Plaintiffs (Respondents)

and

Malka Delson and Robert Delson Defendants (Appellants)

Counsel

J. David Sloan, for the appellants

Matthew Wise and Jordan Kamenetsky, for the respondents

Heard and released orally: February 8, 2019

On appeal from: the judgment of Justice Mario D. Faieta of the Superior Court of Justice, dated December 18, 2018.

Reasons for Decision

[1] The appellants admit the mortgage debt, but contend the financial difficulties that prevent them from paying the mortgage debt are due to the improper actions of the lawyer who acted for them on the placement of the mortgage.

[2] There is no evidence that the appellants' dispute with their former lawyer has anything to do with the conduct of the respondent mortgagees in advancing the mortgage funds or seeking to enforce the mortgage. Moreover, the dispute with their former lawyer only relates to the use of about $40,000 from the mortgage proceeds to discharge certain writs registered against title. Prior to the advance of the mortgage funds, the appellants knew the writs were registered on title. As well, they offer no reasonable explanation as to how resolving that claim against their lawyer will enable them to pay the approximately $830,000 now due under the mortgage. Finally, the appellants have not made any payments under the mortgage since early 2018.

[3] In those circumstances, we agree with the motion judge's conclusion that there is no equitable basis to prevent the enforcement of the mortgage.

[4] The appeal is dismissed.

[5] The respondent does not request any costs, so there will be no order as to costs.

"Robert J. Sharpe J.A." "M.L. Benotto J.A." "David Brown J.A."