ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-18356
DATE: 2012/03/01

BETWEEN:

Home Trust Company Plaintiff, Defendant to the Counterclaim – and – Maj Pearcey Defendant, Plaintiff by Counterclaim

Amanda Jackson, for the Plaintiff, Defendant to the Counterclaim
Robert Waddell, for the Defendant, Plaintiff by Counterclaim

HEARD: February 10 th and 15 th , 2012

Turnbull J.

[ 1 ] The plaintiff has brought a motion for summary judgment on a mortgage payable to it by the defendant. The relief sought is as follows:

a) Payment by the defendant, Maj Pearcey, of the sum of $387,557.48 up to and including January 27, 2011, together with interest thereon at the rate of 5.99 per cent per annum from the said date to the date of payment or Judgment;

b) Possession of the lands and premises municipally known as 993 Queen Street West, Unit 106, Toronto, ON, M6J 1H2. The defendant is the registered owner of that property and has so been at all material times.

c) Leave to issue a Writ of Possession in respect of the said premises;

d) Dismissal of the Counterclaim with costs;

e) Post judgment interest at the rate of 5.99 per cent per annum;

f) Its costs of this action on a substantial indemnity costs basis.

Overview of the Facts

[ 2 ] The plaintiff's claim is on a Charge (mortgage) dated September 30, 2009 and made between Maj Pearcey and Home Trust Company under which Ms. Pearcey mortgaged her condominium unit for a term of two years securing the principal sum of $355,000.00. The mortgage was registered on September 30, 2009 as Instrument No. AT2191203 in the Land Titles Division of the Toronto Land Registry Office (No. 66).

[ 3 ] The mortgage was payable in instalments of principal and interest of $2,004.33 payable monthly until October 1, 2011 at which time the balance of the principal, together with any outstanding interest and expenses, became payable. Interest on principal was payable at the rate of 5.9900 per cent per annum calculated half yearly not in advance. In addition to the principal and interest component, the regular monthly mortgage payment included a tax component of $349.56 making the total monthly mortgage payment $2,353.89.

[ 4 ] The mortgage contained the usual provision that on default in payment of any portion of the money thereby secured, the principal would, at the option of the plaintiff, become payable and the Plaintiff shall be entitled to the possession of the property. As noted above, the two year mortgage came due on October 1, 2011. Since the advance of the funds in September, 2009, the defendant has only made three payments on the mortgage and attributes her difficulties totally to the conduct of the plaintiff. In my view, that is ridiculous and has no legal or factual merit.

[ 5 ] There was no dispute that at the time of arguing this motion, the mortgage was at least four months overdue as the term of the mortgage ended on October 1, 2011. The defendant has not refinanced the property to pay the plaintiff. The defendant has asserted this was due to the dispute that exists with respect to legal fees, administration fees and other charges which the defendant asserts have inflated the amount demanded from her, thereby making her refinancing impossible.

[ 6 ] The mortgage was a refinance of existing debts, including an existing first mortgage and an Equityline Visa account, both held by the plaintiff Home Trust. The defendant’s first mortgage was to be increased from approximately $264,000 to $355,000 to permit her to consolidate her debts, many of which were in arrears.

[ 7 ] Subject to certain conditions being satisfied, the refinancing was also to include a holdback of three months of regular monthly mortgage payments under the new mortgage. In other words, Home Trust was to use the money held back and apply it to the payments due by the defendant for the months of November and December 2009 and January 2010. At page 4 of the mortgage commitment, it is clearly stated in capitalized, bolded lettering as follows:

“Home Trust Company to holdback 3 months payments totalling $6,012.99”.

[ 8 ] The plaintiff asserted that this did not mean the mortgage payments for November and December 2009 and January 2010 did not have to be made. It simply meant that Home Trust would hold back that amount of money and apply it against the payments due for each of those months. The defendant submitted that it was represented to her that she would not have to make payments in those months and her first mortgage payment would be due on February 1, 2010.

[ 9 ] The plaintiff argued that all terms of the refinancing agreement signed by the defendant, including the holdback of three months of payments, were subject to mortgage statements from Home Trust confirming the sums of $264,110.00 and $70,000.00 owing under the existing first mortgage and Equityline Visa, respectively, and that both were in good standing and up-to-date. It was further agreed between Home Trust and the Defendant that, should the mortgage statements not reflect this, the terms and conditions of the refinancing commitment [1] would be subject to change, including the holdback of three months payments, at Home Trust’s discretion. I agree with the plaintiff’s position on this matter.

[ 10 ] At the time of advance of funds under the mortgage, the amount required to discharge the existing first mortgage was $268,594.69 (not $264,110.00) and the first mortgage was two payments in arrears. The amount owing on the Equityline Visa was $72,539.27 (not $70,000.00). In addition, the Defendant had represented that, from the funds to be advanced, $8,000.00 was required to pay down credit card balances and $1,495.00 to pay property tax arrears. From the funds advanced by the Plaintiff to the Defendant’s lawyer, $2,187.16 had to be paid to the City of Toronto for property taxes and $8,731.89 was paid to reduce the balances on the Defendant’s credit cards.

[ 11 ] Ms. Sorrenti, employed by Home Trust as an underwriter in the Direct Client Services department, has sworn and filed an affidavit on this motion. She was not cross- examined on it. She was the underwriter on this loan. In July 2009, she stated that the defendant’s existing first mortgage with Home Trust was one payment in arrears. The defendant then asked for Home Trust to assist her with meeting her various payment obligations to both Home Trust and other creditors. A conditional approval of the loan was made August 20 th , 2009.

[ 12 ] Ms. Sorrenti stated that on September 1, 2009, as part of her underwriting of the refinancing, she printed a consolidated statement for the first mortgage which showed that as of that date, there were no arrears and the balance owing was $264,105.09. At the time of closing the refinancing, prior to the advance of funds, she printed another consolidated statement for the prior mortgage which showed that the mortgage was two payments in arrears because the August 29 th and September 14 th payments had both been returned NSF. Ms. Sorrenti explained that the August 29 th NSF payment would not have been noted in the September 1 st consolidated statement as Home Trust is not notified of returned payments until sometime after a payment is returned NSF.

[ 13 ] Fazila Feroze has been a real estate clerk for approximately 20 years and in 2009, she was working in the law office of Sheila Monteiro, the lawyer retained by both the defendant and Home Trust to complete the legal work associated with the refinancing. She has sworn that all dealings between the defendant and Mr. Monteiro’s office were with her. She has sworn in her affidavit that she met with Ms. Pearcey on September 29 th , 2009 and prior to Ms. Pearcey signing the commitment, it was explained to her fully including the fact that its terms, including the holdback of three months, were subject to change. Ms. Feroze swore that she received a telephone call from Ms. Pearcey on September 30 th in which the defendant asked if she would be receiving any funds from the closing. Ms. Feroze explained to her that there would be no funds forwarded to her as the $12,259.10 advanced to their office from Home Trust was insufficient to pay all of Ms. Pearcey’s other debts and that the law firm had reduced its account by about $300.00 to make additional funds available. Ms. Feroze swore that the same day she sent an email to the defendant with a copy of Home Trust’s breakdown of the $355,000.00 and a copy of the cheque forwarded to Ms. Monteiro’s office in the sum of $12,259.10. She swore that these documents were also provided to Ms. Pearcey in the reporting package sent to her on or about September 30, 2009. Ms. Feroze was not cross examined on her affidavit.

[ 14 ] Ms. Pearcey did not make the payment under the mortgage which was due on November 1, 2009 when the regular monthly mortgage payment was returned NSF. Mr. Martins, a default recovery officer at Home Trust, swore that Home Trust contacted the Defendant in relation to the missed payment and confirmed that there were no additional funds available to hold back three month payments and that all remaining funds from the advance in the sum of $12,259.10 had been forwarded to the Defendant’s lawyer for disbursement. The defendant denied that any such communication took place.

[ 15 ] In late to mid-November, 2009, I find that the defendant did receive the “Welcome” letter from the plaintiff which showed holdback funds as $0.00. That letter is dated November 16, 2009 [2] and clearly shows in bold print that her first payment was due November 1, 2009.

[ 16 ] During her cross examination, at page 145, question 650, Ms. Pearcey agreed that she read this letter which stated that her payment was due November 1, 2009 and that she read the rest of the document. Then, at question 665, she said she did not understand that there was no holdback available. At question 666, she agreed she did not read the letter thoroughly enough and finally, at question 667, she stated that she did not recall the document.

[ 17 ] I do not accept her evidence in this respect. She clearly was aware of the problem with her mortgage and the lack of holdback funds to cover the November payment. If that was not the case, she would not have been trying to contact Ms. Sorrenti in November.

[ 18 ] Mr. Pearcey swore that she phoned Home Trust several times in November, December and in January to advise their representatives that there would be insufficient funds in her account until February 1, 2010. She also swore that she called Cinzia Sorrenti several times in November 2009 to find out what was going on but she was ultimately advised that Ms. Sorrenti was on maternity leave. This evidence was contradicted by the affidavit sworn by Jayson Fowler sworn July 22, 2011. He is a mortgage officer employed by Home Trust. He has sworn that contrary to what Ms. Pearcey alleged in paragraph 43 of her affidavit sworn May 5, 2011, no one at Home Trust ever told her she did not need to start making payments until February 1, 2010. He swore that on December 7 th and on December 16 th , 2010, Jennifer Duqette of Home Trust’s collections department did speak with the plaintiff confirming that there had been no funds available for the holdback and that the plaintiff needed to make a payment towards the mortgage. Mr. Fowler was also not cross examined on his affidavit.

[ 19 ] Home Trust issued a Notice of Sale under Charge on January 20, 2010. The defendant submits that the Notice of Sale was invalid because the plaintiff was in breach of the “holdback arrangement” pursuant to which she was not obliged to make a mortgage payment until February 1, 2010. Counsel for the defendant noted that in fact a payment was made in January 2010 towards the mortgage and hence the mortgagee had overpaid what was due at the time the plaintiff commenced action under the mortgage.

[ 20 ] In August of 2010, as a gesture to the defendant, the plaintiff advised that it would acknowledge a default date of February 1, 2010 with a capitalization of the November 2009, December 2009 and January 2010 payments. This would have effectively provided the Defendant with the hold back of three mortgage payments she claimed to be entitled to and the denial of which she alleges was the reason for default in payment. The Defendant was given the opportunity to bring the payments into good standing based on a default date of February 1, 2010. The amount required was $18,831.12 (representing missed regular monthly mortgage payments from February 2010 to September 2010).

[ 21 ] The defendant did not pay the amount required to bring the mortgage current and, instead, on September 1, 2010, the plaintiff’s lawyers received a cheque for only $4,056.00.

[ 22 ] The defendant was afforded a further opportunity to bring the mortgage into good standing. On September 8, 2010, the plaintiff’s lawyers sent correspondence to the defendant’s lawyer acknowledging receipt of the cheque in the amount of $4,056.00 and advising that the plaintiff was prepared to allow the defendant until October 2, 2010 to bring the payments under the mortgage into good standing. At the same time the plaintiff’s lawyers confirmed receipt of five additional cheques from the defendant, each in the sum of $2,004.33, which the plaintiff would proceed to cash. The letter confirmed that, after applying the cheques, there remained outstanding the sum of $4,753.47 which would have to be paid by October 2, 2011.

[ 23 ] The payment requested from the defendant was not received and, when the plaintiff attempted to process the cheques previously received, three were returned NSF.

[ 24 ] The amount due under the mortgage as at January 27, 2011 was $387,557.48. The plaintiff simply seeks interest on that sum at the agreed interest rate of 5.9 % from that date to the date of judgment.

The Law

[ 25 ] Under Rule 20.04(2), the Court shall grant judgment when it is satisfied there is no genuine issue requiring trial. In determining whether there is a genuine issue requiring a trial, Rule 20.04(2.1) states that the court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers for the purpose.

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[ 26 ] In January 2010, Rule 20 was amended. The wording change which is pertinent to this motion is the change in the Rules from “no genuine issue for trial” to “no genuine issue requiring a trial,” together with the explicit powers of the motions judge to make evidentiary determinations. These changes permit a more meaningful review of the paper record and expressly overrules jurisprudence that prevented motions judge from making evidentiary determinations. As a result, consistent as well with the new principle of proportionality in Rule 1.04(1.1), cases or issues need not proceed to trial unless it is genuinely required. Cuthbert v. TD Canada Trust 2010 ONSC 830 , [2010] O.J. No. 630 at para 10 .

[ 27 ] In determining whether or not there is a genuine issue requiring trial, the responding party’s sworn testimony in the form of affidavit evidence or other material require that the party set out coherent evidence of specific facts showing that there is a genuine issue requiring a trial. It is not sufficient to say that more and better evidence will or might be available at trial. While there is an onus on the moving party to establish that there is no genuine issue requiring a trial, the case law also resolutely establishes that the respondent must “lead trump or risk losing”. Canadian Imperial Bank of Commerce v . Mitchell 2010 ONSC 2227 , [2010] O.J. No. 1502 at para 18 .

[ 28 ] In the recent case of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 , a five judge panel of the Ontario Court of Appeal carefully analyzed the application of the newly enacted provisions of Rule 20. At para. 50, the court established the new rule for the presiding motions judge to be the “full appreciation test”

...the test for exercising the powers conferred by Rule 20.04 (2.1) is whether the full appreciation of the evidence and issues that is required to make dispositive findings is possible on the motion for summary judgement.

[ 29 ] The previous line of cases were founded essentially on determining whether there was a genuine issue for trial. In the case of Irving Ungerman Ltd. v. Galanis, 1991 7275 (ON CA) , [1991] O.J. No. 1478 (C.A.) at paras. 19 and 20 , the Court of Appeal held that Rule 20 was a means of avoiding protracted and expensive litigation when there is no requirement for a trial because there is no genuine issue of fact. The summary judgment rule, properly applied, shall be liberally construed to secure the most expeditious and least expensive determination of the civil proceeding on its merits.

Position of the Defendant

[ 30 ] Counsel for the defendant, Mr. Waddell, argued in his able submissions that this case has circumstantial circumstances that require a trial. He argued that the three month hold back was a term of the defendant’s agreement with the plaintiff and Home Trust failed to honour it. He submitted that Home Trust’s premature attempted withdrawal of mortgage funds during the hold back period caused turmoil to the defendant’s personal finances which caused a destructive domino effect upon her efforts to improve her personal financial circumstances with other creditors. When the Power of Sale proceedings were commenced against the defendant in January 2010, Mr. Waddell submitted that it added to her problems and prevented the payments due under the mortgage from automatically being deducted from her account. He further submitted that the defendant ought to have been given independent legal advice and as a result, the defendant signed the mortgage commitment which was not properly explained to her and which induced her to sign because of the three month hold back provision.

Analysis

[ 31 ] Home Trust advanced the full amount of $355,000.00 but as a result of the discrepancies in the amounts owing on the existing debts, there were insufficient funds available to hold back three months of mortgage payments. Thus, although the defendant did not receive a holdback of the funds under the Charge, she did obtain the benefit from the funds which would otherwise have been available for the three month holdback period because those funds were applied to the arrears she had allowed to accrue under the previously existing first mortage and Equityline Visa between the time of underwriting the refinancing and the advance of the funds. The amount that was applied to the arrears was approximately $7,429.82.

[ 32 ] I find that the terms of the mortgage commitment clearly specified that Home Trust had the power to adjust the terms of the commitment if the financial representations made by the defendant were misstated, as they clearly were in this case.

[ 33 ] At paragraph 7 of the affidavit of Ms. Feroze, she swore that on the date of closing she spoke to the defendant and indicated that there would be no funds for her and that was in the email sent to her that day. Also that was included in the documentation sent as part of the reporting package. Of note, Ms. Pearcey did not dispute having received that information. During the cross examination of Ms. Pearcy, at page 305, question 1361, counsel for the plaintiff put the email package to the defendant and asked if she received it. The defendant said that she did not recall getting that information but agreed she had no reason to dispute that Ms. Feroze had sent it to her.

[ 34 ] I have no difficulty in finding that the defendant knew that there was a problem with her mortgage in November 2009 but instead of dealing with the issue, she procrastinated and took a position contrary to the one which legally bound her.

[ 35 ] It is abundantly clear from the record before this court, that the defendant has been given ample opportunity to bring the mortgage into good standing. In her cross-examination, Ms. Pearcy acknowledged at questions 976 and 977 that after having had numerous conversations with representatives from Home Trust about the arrears owing for November, December and January, she had sufficient funds in her account in February 2010 to pay the $4,707.78 which was outstanding, and yet she chose not to do so.

[ 36 ] As noted in paragraph 20 of this Judgment, in August 2010, Home Trust tried to resolve this matter in an amicable manner. It advised the defendant that it was willing to acknowledge a default date of February 1, 2010 with a capitalization of the payments due in November and December 2009 and in January 2010. [3] This would have effectively provided the defendant with the three months holdback she claimed to be entitled to, and the denial of which she claimed was the reason for her default under the mortgage. The defendant failed to comply with this reasonable request which would have put her in the very position she claimed she was supposed to be in if her version of the commitment agreement was accepted.

[ 37 ] Ms. Pearcey swore that she felt very rushed in the refinancing process by Home Trust employees and her solicitor’s office. However, on her cross examination, Ms. Pearcey agreed at page 169 that Ms. Sorrenti answered all her questions when she met with her at the time of signing the closing documents on September 29, 2009.

[ 38 ] Elsewhere in her cross examination, Ms. Pearcey gave answers which directly contradict her position taken on this motion that she did not understand the right of Home Trust not to retain funds for the holdback if they were not available. At volume 1 of the transcript, page 61, question 270, Ms. Pearcy was presented with an earlier copy of the commitment which is the same as the one she ultimately signed. [4] There she stated...

“I read all my documentation very carefully and read every line and I understood”

[ 39 ] Except for the date, that commitment had the identical conditions and terms as the commitment signed by her at the time of closing on September 29 th , 2009. At question 380, she agreed that she read it over and agreed with the terms and that it was her signature on the document. She further agreed at page 89, question 392, the “subject to change” clause was identical in both copies of the commitment and that she understood it.

[ 40 ] At p. 97, question 433 of her cross examination transcript, Ms. Pearcey stated that she knew she had missed some mortgage payments when she signed the commitment.

[ 41 ] Ms. Sorrenti stated that any “rush” associated with the refinancing was caused by delays by Ms.Pearcey in returning documents to her that were required by the refinancing process. She swore that as a result of the defendant’s delays, the closing date of the transaction had to be delayed several times between August and September 2009, finally closing on September 30, 2009. I accept Ms. Sorrenti’s evidence that the delays were largely caused by Ms. Pearcey. This is supported by the fact Ms. Pearcey also neglected to bring in documents requested by Ms. Feroze for the closing and they nevertheless closed the financing on September 30 th on Ms. Pearcey’s promise to get her the documents. This inability to get her affairs properly organized is further evidenced by Ms. Pearcey’s arrears on her prior first mortgage and her arrears on her other financial obligations.

[ 42 ] The defendant clearly was entitled to independent legal advice before signing the commitment letter. She did not indicate in her affidavit that she sought it or felt she needed it and was denied that right. If she felt that she was not properly protected by her solicitor in this transaction, one would have expected her to have instituted the appropriate legal proceedings against her lawyer within the appropriate limitation period, which now has passed.

[ 43 ] I know of no legal principle under which the remedy of equitable set-off would be applicable on the facts of this case. Counsel did not provide me with any case law to support this submission and I accordingly reject it.

[ 44 ] Home Trust takes the position that the holdback was always subject to certain conditions being met and the defendant knew they were not met as they were in her control. Secondly, the defendant knew that on closing there was no holdback available. Thirdly, she has had full opportunity to address default under the mortgage and she had the ability to do so. She simply did not do so.

[ 45 ] The only logical conclusion which I can draw from the record before the court is that the defendant has done nothing more than delay this action. The action has been ongoing beyond the two year term of this mortgage. At the time of writing this ruling, it is five months after the mortgage became due in full and the defendant is still fighting and not paying, despite her clear legal obligation to do.

Calculation of the Amount Claimed by the Plaintiff

[ 46 ] Counsel for the plaintiff explained in detail the manner in which the sum of $387,557.48 is sought for judgment. In that respect, she referred the court to the Plaintiff’s Motion Record at tab 2k. The method of calculation was not disputed by the defendant except for the $2800.00 late fee charges and the prepayment cost of $5319.14. I will deal with those two items hereafter. I will reproduce the payout statement prepared by the plaintiff to January 27, 2011 for ease of understanding:

Principal Balance: $355,201.55
Accrued Interest to Jan. 27, 2011 $ 26,406.07
Late Interest $ 1,050.52
Tax Account Balance $ 2755.00

Charges/Payments:

Late fee/NSF Jan-May ‘10@ $200, June ’10-Jan. ‘11@ $225 $2,800.00

Maintenance Fee March-June ‘10@ $31.50 and Sept/Dec.’10

@ $33.90 $ 130.80

Transferred NSF payment from prior mortgage $ 884.56

Legal Administration Fee $ 950.00

Property Inspection $ 125.00

Prepayment Cost $ 5319.14

Credit Payments made ($8,064.66)

Total Charges/Payments $ 2,144.84

Total Due to January 27, 2011 $387,557.48

[ 47 ] Counsel for the plaintiff agreed that the per diem interest rate from January 27, 2011 to the date of judgment at the mortgage rate of 5.9% was $58.29. She further advised the court that the plaintiff was not seeking late fee charges after January 2011.

[ 48 ] On review of the terms of the mortgage [5] , I am satisfied that the plaintiff can properly claim all of the above listed fees including the late fee charges (which I find were reasonable) and the claim for the prepayment cost of $5,319.14. During the course of her submissions, Ms. Jackson indicated that if required, she could provide the court with authority for such payment. However, having had the opportunity to fully review the terms of the Standard Form Charge, I am satisfied that paragraph 8.4, and in particular the last paragraph thereof contains specific terms which permit the plaintiff to claim the prepayment cost now that the term of the mortgage has expired.

The Counterclaim

[ 49 ] I have reviewed the counterclaim in this matter and find that it simply reasserts the allegations made in the statement of defence. It does not disclose a cause of action that has any chance of success at trial for the reasons articulated above.

[ 50 ] In the counterclaim, the defendant seeks $38,000.00 of damages but on this motion, she gave no particulars of any damages she allegedly suffered or what creditors she was not able to deal with due to the alleged improper actions of the plaintiff. One would think that the defendant, having made only three payments on the mortgage, would have had adequate funds to deal with her other creditors. There is no basis in fact or in law on the record before this court upon which the defendant’s claims of non est factum, misrepresentation, equitable set off or wrongfully inducing the defendant to execute the loan agreement could possibly succeed.

[ 51 ] Hence, the counterclaim is dismissed with costs to the plaintiff.

Conclusion

[ 52 ] The plaintiff shall have judgment as follows:

(a) Payment by the Defendant, Maj Pearcey, of the sum of $387,557.48 up to and including January 27, 2011, together with interest thereon at the rate of 5.99 per cent per annum from the said date to the date of Judgment;

b) Possession of the lands and premises municipally known as 993 Queen Street West, Unit 106, Toronto, ON, M6J 1H2 more particularly described as follows:

Unit 6, Level 1; Unit 29, Level B, Metro Toronto Condominium Plan No. 1328 and its appurtenant interest. The description of the Condominium Property is: Parcel H-1, Section A-878, Being Blocks H and J, Plan 878, Designated as Part 1 Plan 66R-18492, S/T as set out in Schedule “A” of Declaration Number Erdelac-347275. City of Toronto, City of Toronto Property Identification Number 12328-006 LT; 12328-0202 LT

c) leave to issue a Writ of Possession in respect of the aforesaid lands and premises;

d) post judgment interest at the rate of 5.99 per cent per annum;

e) its costs of this action on a substantial indemnity costs basis.

[ 53 ] It is ordered that the counterclaim be dismissed with costs on a substantial indemnity basis.

Costs

[ 54 ] The plaintiff is entitled to its reasonable costs on a substantial indemnity basis. If counsel cannot agree on those costs, the plaintiff shall provide a costs summary and brief written submissions on or before March 10 th , 2012. The defendant shall provide brief reply submissions on or before March 20 th , 2012 and the plaintiff may provide brief written responding submissions on or before March 25 th , 2012.

March 1, 2012

Turnbull, J.

COURT FILE NO.: 10-18356
DATE: 2012/03/01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Home Trust Company Plaintiff, Defendant to the Counterclaim – and – Maj Pearcey Defendant, Plaintiff by Counterclaim

REASONS FOR JUDGMENT

TURNBULL J.

JC:mg

Released: March 1, 2012

[1] Affidavit of Saul Martins sworn March 17, 2011, exhibit B, schedule “A”.

[2] Exhibit F to the affidavit of Cinzia Sorrenti sworn July25, 2011

[3] Exhibit H to the affidavit Saul Martins sworn March 17 th , 2011.

[4] Tab C to the Defendant’s Reply Record

[5] Found at page 17 of the Standard Charge terms affixed to the defendant’s mortgage found at exhibit A to the affidavit of Saul Martins sworn March 17, 2011 and which is found in the Plaintiff’s Motion Record at Tab 1A.