COURT OF APPEAL FOR ONTARIO

CITATION: Posocco v. Battista, 2016 ONCA 419 DATE: 20160531 DOCKET: C61169

Laskin, Pepall and Brown JJ.A.

BETWEEN

Claudio Posocco Applicant (Appellant)

and

Felice Battista, Domenic Battista, Casimiro Holdings Inc., and Justam Holdings Limited Respondents (Respondents)

Ronald Birken, for the appellant Andrea M. Habas, for the respondents Felice Battista and Domenic Battista Christopher E. Reed, for the respondents Casimiro Holdings Inc. and Justam Holdings Limited

Heard: April 26, 2016

On appeal from the Judgment of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated October 8, 2015.

Brown J.A.:

I. OVERVIEW

[1] At issue on this appeal is the enforceability of a judgment obtained against the appellant, Claudio Posocco, on a guarantee he gave in 2011 to secure an extension of the mortgage his company, Sedona Lifestyles (Dixie) Inc., had granted to Nancy Battista. After Nancy’s death in 2011, her interest in the mortgage passed to her sons, the respondents Felice Battista and Domenic Battista (the “Battistas”). They obtained an unopposed judgment, dated February 21, 2014, on the guarantee against Posocco in the amount of $794,471.41 (the “Posocco Judgment”).

[2] In September 2015, Posocco applied for orders setting aside the Posocco Judgment and related writs of seizure and sale. He argued that when, in 2014, the Battistas postponed their first mortgage in favour of two other mortgages on the Sedona property, they materially altered the risk on his guarantee, thereby terminating it.

[3] The application judge dismissed the application. Posocco appeals, seeking to set aside the Posocco Judgment and related writs. He also seeks a declaration that his guarantee has become “void and unenforceable,” relief he did not request in his notice of application.

[4] I would dismiss the part of the appeal that seeks to set aside the Posocco Judgment. In my view, the application judge reasonably interpreted Posocco’s guarantee as permitting the Battistas to postpone their first mortgage without Posocco’s consent, and the validity of the Posocco Judgment was not affected by the postponements. However, I would allow that part of the appeal based on the fresh evidence Posocco filed about a foreclosure judgment obtained on the Sedona property. In my view, the fresh evidence raises an issue about the effect of the foreclosure judgment on the enforceability of the Posocco Judgment and related writs. I would remit that issue back to the application judge for a further hearing.

II. FACTS

[5] The material facts are not in dispute. Posocco is the president of Sedona, which owned a development property in Mississauga. In November 2008, Sedona granted a one-year first mortgage on the property to Nancy Battista in the principal amount of $700,000 (the “Battista Mortgage”).

[6] The Battista Mortgage matured in November 2009. Several extensions to the mortgage maturity date were granted. To obtain one of the extensions, Posocco provided a personal guarantee to the Battistas dated December 22, 2011, guaranteeing due payment by Sedona of all sums of money loaned by the Battistas to Sedona (the “Guarantee”).

[7] The Battistas granted a final extension of the mortgage until December 31, 2012. Sedona did not pay the mortgage. The Battistas commenced an action on their mortgage.

[8] By then, Sedona had granted two subsequent mortgages against its property: a second mortgage for $1 million to the respondent, Casimiro Holdings Inc. (“Casimiro”), and a third mortgage for $450,000 to Raimondo Holdings Inc., which was assigned to Casimiro in September 2014.

[9] On June 19, 2013, the Battistas obtained a consent judgment ordering the sale of the property and granting judgment against Sedona in the amount of $758,540.32 (the “Sedona Judgment”).

[10] The Battistas then commenced an action on the Guarantee against Posocco, and obtained the Posocco Judgment on February 21, 2014.

[11] On February 25, 2014, the Battistas filed a writ of seizure and sale against Posocco in respect of the Posocco Judgment.

[12] On April 7, 2014, the Battistas assigned their beneficial interest in the Battista Mortgage, the Guarantee, the Posocco Judgment, and the Sedona Judgment to Justam Holdings Limited, a company with the same principal as Casimiro, Mr. Jose Casimiro. The assignment of the interest in the Battista Mortgage was not registered on title because, under the assignment agreement, the Battistas continued to hold legal title to all debt claims against Sedona and Posocco. Justam gave notice of the assignment to Posocco by counsel’s letter of April 29, 2014. Posocco does not suggest that the assignment was not permitted by the terms of the Battista Mortgage.

[13] On September 23, 2014, Raimondo transferred its third mortgage to Casimiro. So, by that point in time, companies controlled by Jose Casimiro held the three mortgages on the Sedona property.

[14] Then occurred the two events that lie at the heart of this appeal.

[15] First, on May 22, 2015, postponements of the Battista Mortgage to the second and third mortgages then held by Casimiro were registered on title. At the time, Posocco was not aware of the postponements, nor did he consent to them.

[16] Next, Casimiro commenced a foreclosure action in June 2015 under its mortgage which, prior to the postponements, had stood second to the Battista Mortgage. The statement of claim was served on Posocco.

[17] Casimiro obtained a judgment on August 14, 2015 foreclosing the right, title and equity of redemption of Sedona and the Battistas in the property. That Foreclosure Judgment was not before the application judge, and Posocco seeks to adduce fresh evidence about it.

[18] In September 2015, Posocco started an application to set aside the Posocco Judgment and related writs. In support of his application, Posocco deposed that the postponements of the Battista Mortgage to Casimiro’s second and third mortgages materially altered the risk he had assumed in giving his Guarantee because the postponements rendered the Battista Mortgage worthless. Posocco argued that, as a result of that material change to which he had not given his consent, his Guarantee was no longer enforceable.

[19] The application judge dismissed Posocco’s application. He interpreted the Guarantee as permitting the postponement of the Battista Mortgage without Posocco’s consent.

III. THE STANDARD OF REVIEW

[20] In his submissions, Posocco does not address the standard of review applicable to the application judge’s interpretation of the Guarantee, but he argues that a “proper interpretation” of the Guarantee would arrive at a different result than that reached below.

[21] The respondents submit that the interpretation of a non-standard form contract, such as the Guarantee, raises a question of mixed fact and law, which attracts review on a palpable and overriding error standard, unless extricable errors of law are evident: Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53; Energy Fundamentals Group Inc. v. Veresen, 2015 ONCA 514, at para. 29.

[22] There is no dispute that the Guarantee was prepared by the Battistas. However, the Guarantee is not a pre-printed contract of adhesion prepared by an institutional lender, the interpretation of which would attract review on a correctness standard: MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, at paras. 40-41. The Guarantee was sought by the estate of an individual lender in response to requests by Sedona to extend the term of the Battista Mortgage. The language of the Guarantee affects only the legal obligations of the present parties – the Battistas (and their assigns) and Posocco. As a result, the Sattva standard of review applies to the interpretation of the Guarantee.

IV. THE ISSUES

[23] Posocco raises three main issues on this appeal:

(i) The first issue focuses on the changes in the guarantor’s risk permitted by the terms of the Guarantee. Posocco argues the application judge erred in interpreting the Guarantee as allowing the creditor, the Battistas, to postpone the Battista Mortgage to other security, without Posocco’s consent, and without terminating Posocco’s liability under the Guarantee;

(ii) The second issue focuses on the effect of the postponement of a mortgage on a guarantor’s subrogation rights to any security held in respect of the guaranteed obligation. Posocco submits the postponement of the Battista Mortgage rendered it worthless. The resulting inability of the Battistas to return valuable mortgage security to Posocco in the event he paid the Posocco Judgment rendered the Guarantee unenforceable; and

(iii) The third issue focuses on the effect of foreclosure on the obligation to pay the mortgage debt, which is the guaranteed obligation. The fresh evidence shows that Casimiro obtained and registered the Foreclosure Judgment. Posocco contends that by foreclosing on the right, title and interest of Sedona and the Battistas in the property, Casimiro looked to the property to satisfy its claims. As a result, the Posocco Judgment and associated writs should not be enforced.

V. FIRST ISSUE: THE INTERPRETATION OF THE GUARANTEE

The applicable principles of interpretation

[24] In his reasons, the application judge correctly identified the basic principles concerning how a material alteration of the terms of the underlying contract of debt affects a guarantor’s continuing liability under a guarantee: (i) at common law and equity, a guarantor will be released from liability on a guarantee in circumstances where the creditor and the principal debtor agree to a material alteration of the terms of the contract of debt without the consent of the guarantor; however, (ii) it is open to the parties to make their own arrangements, so a guarantor can contract out of the protection afforded by the common law or equity: Manulife Bank of Canada v. Conlin, 1996 CanLII 182 (SCC), [1996] 3 S.C.R. 415, at paras. 2 and 4.

[25] The application judge also correctly recognized that determining the continuing liability of a guarantor requires determining the intention of the parties as demonstrated by the words of the guarantee, as well as the events and circumstances surrounding the transaction as a whole: Conlin, at para. 6.

[26] The Conlin decision summarizes several additional principles of interpretation applicable to guarantees:

(i) any contracting out of a guarantor’s protection against a material alteration of the terms of the contract of debt without his consent must be clear;

(ii) whether the guarantor contracted out of those protections must be determined by an interpretation of the clauses of the agreement, through a consideration of the transaction as a whole, and the application of the appropriate rules of construction;

(iii) any ambiguity in the terms used in the guarantee should be construed against the party which drew it by applying the contra proferentem rule;

(iv) if there is a doubt or ambiguity as to the construction or meaning of the clauses binding the guarantor, they must be strictly interpreted and resolved in favour of the guarantor; and

(v) the clauses binding guarantors must be strictly construed: Conlin, at paras. 4, 8, 15 and 22.

The Meaning of s. 2(iii) of the Guarantee

[27] The dispute between the parties is a narrow one, with each advancing different interpretations of s. 2(iii) of the Guarantee which reads as follows:

2. The Guarantor agrees (except as specifically stated) as follows:

(iii) The Creditor, in its absolute discretion and without diminishing the liability of the Guarantor, may grant time or other indulgences to the Borrower or any other person or persons liable to the Creditor in respect of the principal sum and interest and may give up, modify, vary, exchange, renew or abstaining from, perfecting or taking advantage of any Promissory Note, or any security in whole or in part, and may discharge any part or parts or accept any composition or arrangement or realize upon the Promissory Note or any security when and in such manner as the Creditor or any officer thereof may think expedient, and in no case shall the Creditor be responsible for any neglect or omission with respect to any such security. Any accounts settled or stated by or between the Creditor and the Borrower or admitted by or on behalf of the Borrower may be adduced by the Creditor and shall in that case be accepted by the Guarantor as conclusive evidence that the balance or amount thereof thereby appearing is due by the Borrower to the Creditor.

[28] Posocco acknowledges that where a guarantee is given as further security for a mortgage debt, a guarantor can agree that a postponement of the underlying mortgage security will not affect his liability on the guarantee. However, he argues that on a proper and narrow interpretation of s. 2(iii) which resolves any ambiguity in his favour, the section only deals with affairs between the creditor, the Battistas, and the borrower, Sedona, and does not include language which would allow the creditor to postpone its mortgage security to a third party - such as another creditor - without Posocco’s consent.

[29] For their part, the respondents point to the language in s. 2(iii) stating that the creditor “may give up, modify, vary, exchange, renew or abstaining (sic) from, perfecting or taking advantage of … any security in whole or in part.” This language, they contend, permits the creditor to postpone the Battista Mortgage to other third party mortgages on the Sedona property without the consent of the guarantor, Posocco.

[30] The application judge accepted the respondents’ interpretation of s. 2(iii) of the Guarantee stating, at paras. 7-8:

Under the terms of the Guarantee, the applicant undertook liability notwithstanding “any neglect or default of the creditor which might otherwise operate as a discharge, whether partial or absolute, of the Guarantor if it were a surety only of the Borrower”: para. 2(ii) of the Guarantee. The applicant also explicitly contracted to allow the creditor to vary any security, in whole or in part, without the creditor being responsible “for any neglect or omission with respect to any such security”: para. 2(iii) of the Guarantee.

The language used in the Guarantee indicates that the intention of the parties was to ensure that the applicant’s liabilities remained extremely broad even if the mortgage arrangements were altered in a material fashion. The terminology contained in para. 2(iii) permitting the creditor to “vary any security in whole or part” must be read to include the subordination or postponement of the mortgages. It follows therefore that I reject the applicant’s argument that the terms “postponement” and “subordination” were required to be expressly stipulated in these paragraphs before the applicant could be held to have contracted out of his common law protection. By agreeing [to] the terms of the Guarantee, the applicant, agreed to forgo his common law rights.

[31] In my view, the application judge arrived at a reasonable interpretation of s. 2(iii) of the Guarantee in light of the applicable principles of interpretation. Three reasons support the application judge’s interpretation that s. 2(iii) of the Guarantee permitted the postponement of the Battista Mortgage to the other mortgage security Sedona had granted to Casimiro and Raimondo.

[32] First, s. 2(iii) identifies matters which concern both the relationship between the creditor and the borrower – such as granting indulgences to Sedona – as well as those which concern the creditor’s ability to deal with the security it holds in respect of the underlying debt, including giving up, modifying and discharging the security.

[33] Second, in s. 2(iii), Posocco, as guarantor, agreed that the creditor, “in its absolute discretion and without diminishing the liability of the Guarantor,” may “give up, modify, vary, exchange, renew or abstaining (sic) from, perfecting or taking advantage of…any security in whole or in part.” The terms “modify” and “vary” are broad terms of alteration and, when read in the context of s. 2(iii) as a whole, are not ambiguous. The postponement of a mortgage involves the modification or variation of a mortgage, specifically the priority of the mortgage, and therefore would fall within the ambit of those terms.

[34] Third, given that s. 2(iii) of the Guarantee permits the creditor to “give up” the mortgage security or to “discharge any part…[of] any security when and in such manner as the Creditor…may think expedient,” “in its absolute discretion and without diminishing the liability of the Guarantor,” it is difficult to see how a lesser act – the postponement of the priority of the mortgage – would not fall within the terms “modify” or “vary”.

[35] Given the breadth of the alterations s. 2(iii) authorizes the creditor to make to the mortgage security “without diminishing the liability of the Guarantor,” the application judge reasonably concluded that the Battistas’ postponement of their first mortgage fell within the permitted alterations. Although a postponement of the Battista Mortgage certainly would change Posocco’s risks, under the plain language of s. 2(iii) Posocco had agreed that the creditor could alter his risk in that fashion in the creditor’s “absolute discretion and without diminishing the liability of the Guarantor.”

[36] Although that is sufficient to dispose of this ground of appeal based upon the arguments advanced before the application judge and this court, I would add one observation. In my view, it is not at all clear that the common law protection afforded to guarantors against non-consensual material alterations in their risk would apply where a guarantor's liability under a guarantee had already been fixed by judgment before the material alteration took place.

[37] In the present case, the Battistas obtained judgment against the borrower, Sedona, in June 2013, and judgment against Posocco on his Guarantee in February 2014. In other words, the borrower defaulted, and the creditor called on the Guarantee. The assignment and postponement of the Battista Mortgage took place after Posocco was adjudged liable on his Guarantee for $794,471.41.

[38] The principle that a guarantor will be released from liability where his creditor materially alters the terms of the underlying contract of debt without his consent seeks to protect the guarantor against future risks for which he did not contract – i.e. the increased risk of a future default by the principal debtor resulting from the altered terms of the underlying debt. If those risks are altered without his consent, the common law releases the guarantor from liability for any default made by the primary debtor after the terms of risk have changed: Conlin, at paras. 2-3.

[39] I therefore have difficulty seeing how the common law protection would assist a guarantor whose liability under a guarantee already had been crystallized and fixed by judgment following a default by the principal debtor, but before any material alterations were made to the underlying contract of debt. It strikes me that the liability of the guarantor under the guarantee would merge in the judgment. However, since the parties did not raise this issue below or before us, it is not necessary to decide it.

VI. SECOND ISSUE: THE ENFORCEABILITY OF THE POSOCCO JUDGMENT IN LIGHT OF THE POSTPONEMENT OF THE BATTISTA MORTGAGE TO A POSITION OF NO VALUE

[40] Posocco advances a second argument in support of his position that a postponement of the Battista Mortgage without his consent should terminate his obligations under the Guarantee. This ground concerns the right of subrogation a guarantor enjoys to any security held in respect of the guaranteed obligation: Kevin McGuinness, The Law of Guarantee, 3d ed. (Markham: LexisNexis Canada, 2013), at para. 10.24.

[41] Posocco relies on s. 2(1) of the Mercantile Law Amendment Act, R.S.O. 1990, c. M.10, which provides that where a surety pays the debt of another, the surety is entitled to have assigned to it “every judgment, specialty or other security that is held by the creditor in respect of the debt.” Posocco argues that the postponement of the Battista Mortgage rendered it worthless, thereby depriving Posocco of his right to an assignment of the security in the event he paid the debt.

[42] Section 2(1) of the Act does not assist Posocco because it only entitles a surety to an assignment of the security where he has actually paid the debt, which Posocco has not done: George and Asmussen Ltd. v. MCM Projects Inc. (1992), 1992 CanLII 7562 (ON SC), 6 O.R. (3d) 645 (Ont. Ct. J. (Gen. Div.)), at p. 648.

[43] However, in Bauer v. Bank of Montreal, 1980 CanLII 12 (SCC), [1980] 2 S.C.R. 102, the Supreme Court of Canada stated, at p. 106, that where a creditor holds security for the performance of the obligations of a debtor or a surety, “[t]he creditor, in the absence of agreement to the contrary with the debtor or the surety, must protect and preserve the security and be in a position, unless excused by other agreement, to return or reassign the security to the debtor or surety on repayment of the debt.”

[44] Posocco submits that by postponing their first mortgage to the second and third charges on the property, the Battistas rendered the first mortgage worthless, thereby preventing the return to Posocco of security with value should he ever decide to repay the guaranteed debt.

[45] The application judge did not address this point in his reasons; it is unclear from the record whether the issue was even argued before him. In any event, I would not give effect to Posocco’s argument because the Guarantee contains an “agreement to the contrary,” in the language of the Bauer case. Specifically, s. 2(iv) of the Guarantee provides, in part:

[I]f the Guarantor pays to the Creditor all the money remaining unpaid, then the Guarantor shall be entitled, on demand made by it in writing to the Creditor, to the assignment of such of the security as remains in the Creditor at the times such notice is received by it.

[46] By agreeing to s. 2(iv), Posocco limited his right of subrogation to any security. He expressly acknowledged that if and when he paid the amount owing under the Guarantee, he would be entitled only to an assignment of “such of the security as remains in the Creditor.” Given that s. 2(iii) permitted the creditor to “give up” or “discharge” the mortgage security without Posocco’s consent, the language of the Guarantee specifically contemplates that no security might remain at the time Posocco paid the guaranteed debt, yet that would not diminish his liability as guarantor.

[47] Moreover, in s. 2(ii) of the Guarantee, Posocco agreed that he would continue to be liable “under all the covenants and terms and conditions as agreed upon between the Creditor and the Borrower…notwithstanding the releasing in whole or in part of any security held by the Creditor from time to time…” Accordingly, I would not give effect to this ground of appeal.

THIRD ISSUE: THE EFFECT OF THE FORECLOSURE JUDGMENT ON THE ENFORCEABLITY OF THE POSOCCO JUDGMENT

[48] Posocco raises one final ground of appeal, a ground related to the fresh evidence he seeks to adduce. He submits that the registration of the Foreclosure Judgment renders the Posocco Judgment and associated writs unenforceable because the Foreclosure Judgment had the effect of extinguishing the guaranteed obligation.

The Evidence

[49] In August 2015, Casimiro obtained the Foreclosure Judgment pursuant to its mortgage, which originally stood in second place, but moved up to first as a result of the postponements. Although the evidence before the application judge included the fact that Casimiro had initiated foreclosure proceedings, the Foreclosure Judgment was not brought to the application judge’s attention. Posocco contends that he was not aware of the Foreclosure Judgment at the time of the hearing before the application judge.

[50] Posocco sought to file fresh evidence on this appeal that the Foreclosure Judgment was registered on title on December 15, 2015; the motion was not opposed.

Positions of the parties

[51] Posocco submits Casimiro elected to recover the interests of itself and Justam Holdings, a related company, in the mortgages on the Sedona property by foreclosing on the right, title and interest of Sedona and the Battistas in the property. In Posocco’s view, that renders the Posocco Judgment unenforceable.

[52] The Casimiro Respondents concede that as a result of the Foreclosure Judgment, all debts due under the (second, subsequently first) Casimiro mortgage were satisfied. However, they submit that the debts related to the Battista Mortgage, including the Posocco Judgment, remain due. They argue that no judicial authority supports the proposition that debts secured by a third mortgage (the ultimate position of the Battista Mortgage) are released when a first mortgagee (Casimiro) exercises its right of foreclosure. As well, they take the position that by the terms of the Guarantee, Posocco promised that he would pay the guaranteed debt even if the mortgage had been discharged, so he should be held to his bargain.

Analysis

[53] Although the respondents did not oppose the fresh evidence, its admission is governed by the test established in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. In my view, Posocco has satisfied the due diligence requirement, and the evidence is relevant and credible. As well, had the Foreclosure Judgment been before the application judge, it could have affected the result. I would therefore allow Posocco’s motion to adduce the fresh evidence of the obtaining and registration of the Foreclosure Judgment.

[54] However, I have significant reservations that it would be appropriate for this court to decide the issue of the effect of the Foreclosure Judgment on the enforceability of the Posocco Judgment and related writs. For whatever reason, a full record on this issue was not before the application judge, and it appears the issue was not argued before him. Consequently, we do not have the benefit of the reasons of the court below based on a review of a full record.

[55] What the record before us does reveal is that at the time of the postponements of the Battista Mortgage, all the mortgages on the property were held by related parties. Mr. Casimiro, through his corporations, controlled all three mortgages. As a result, whether subsequent encumbrancers would exercise rights of redemption in response to Casimiro’s foreclosure proceeding lay completely within the control of the senior mortgagee, Casimiro.

[56] Further, as a result of the registration of the Foreclosure Judgment, the Battista Mortgage, the Raimondo mortgage and the postponements were deleted from title. The abstract of title records the amount of the Foreclosure Judgment as $2.15 million, which is the aggregate of the principal amounts of the Battista Mortgage ($700,000), the Casimiro second mortgage ($1 million), and the Raimondo third mortgage ($450,000).

[57] It is the position of the beneficial holder of the Battista Mortgage, Justam Holdings, that although the Foreclosure Judgment extinguished the debt under the first, Casimiro mortgage, the amounts due under the postponed Battista Mortgage – including the Sedona Judgment and Posocco Judgment – remain due and owing.

[58] Yet, the law provides that in order to bring an action on the mortgage covenant, the mortgagee must be able to re-convey the property upon payment of the debt. An exception exists in the case of a junior mortgagee. Such a mortgagee may bring an action on the covenant, despite a prior foreclosure, where the junior mortgagee did not initiate the foreclosure proceeding and was not responsible for the loss of the security: Halsbury’s Laws of Canada, “Mortgages”, (Markham: LexisNexis Canada, 2011), at para. HMO-73 “Second Mortgage”.

[59] As applied to the facts of the present case, these principles of law raise the question as to whether the Foreclosure Judgment obtained by the senior mortgagee, Casimiro – a company related to the junior mortgagee, Justam Holdings – would affect the enforceability of a judgment in respect of the junior mortgage debt where the junior mortgagee was no longer in a position to reconvey the property upon payment of the debt because it had participated in a postponement transaction which resulted in the loss of the security. If, in those circumstances, a foreclosure could extinguish a junior mortgage debt, arguably it might extinguish the related guarantee obligation.

[60] Posocco raised this issue in connection with his fresh evidence motion. At para. 43 of his factum, he argues that by foreclosing after the postponements, Casimiro “elected not to pursue any debt obligations of [Posocco].” Unfortunately, none of the parties squarely addressed this issue or provided full argument on it.

[61] In those circumstances, since the issue was not argued before the application judge, but does arise on the facts of the case given the registration of the Foreclosure Judgment, in my view the appropriate course of action is to remit to the application judge for further hearing the issue of the effect of the Foreclosure Judgment on the enforceability of the Posocco Judgment and related writs.

VIII. DISPOSITION

[62] The application sought to set aside the Posocco Judgment and related writs. The application was dismissed. For the reasons set out above, I would dismiss the appeal from the refusal of the application judge to set aside the Posocco Judgment: the real issue is not the Posocco Judgment’s validity, but its enforceability in light of the Foreclosure Judgment. I would allow the appeal to the extent of remitting for a further hearing before the application judge the issue of the effect of the Foreclosure Judgment on the enforceability of the Posocco Judgment, including the enforceability of any writs of seizure and sale filed pursuant to it.

[63] In light of the divided success on this appeal, I would make no order as to the costs of the appeal.

Released: May 31, 2016 “DB”

“David Brown J.A.”

“I agree John Laskin J.A.”

“I agree S.E. Pepall J.A.”