Raji v. TD Bank Financial Group, 2015 ONSC 3530
COURT FILE NO.: CV-15-520753
DATE: 20150601
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ABDUL RAZAQ RAJI and SHERLEY LEANDRE
Plaintiffs
– and –
TD BANK FINANCIAL GROUP
Defendant
Sherley Leandre, self-represented and for Abdul Razaq Raji
Nicole Brown Dunbar for the Defendant
HEARD: May 25, 2015
PERELL, J.
REASONS FOR JUDGMENT
[1] The Plaintiffs, Abdul Razaq Raji and Sherley Leandre, who are self-represented litigants, sue the Defendant the Toronto Dominion Bank (“TD Bank”), incorrectly described in the Statement of Claim as the TD Bank Financial Group, for $626 million and for special criminal sentences and for a referral of their claim directly to the Supreme Court of Canada. The Plaintiffs seek a court-ordered investigation - to be conducted only by RCMP officers and experts from the indigenous communities - as to how it came about that the TD Bank forged documents and took possession of the Plaintiff’s house in Windsor, Ontario.
[2] The TD Bank brings a summary judgment motion: (1) to have Mr. Raji’s and Ms. Leandre’s action dismissed as an abuse of process or alternatively on its merits; and (2) for judgment on the TD Bank’s mortgage enforcement action, which is a counterclaim only against Ms. Leandre.
[3] Mr. Raji and Ms. Leandre resisted the summary judgment motion, and Ms. Leandre appeared to argue the summary judgment motion.
[4] In these Reasons for Judgment, I shall explain to Ms. Leandre why her action is without merit, and why the TD Bank’s summary judgment motion should be granted. Because her action is without merit, it is unnecessary for me to comment about the TD Bank’s argument that the Plaintiffs’ action is an abuse of process.
[5] Ms. Leandre presented herself as an articulate and well-educated person with some knowledge of the operation of the substantive and procedural law. However, on some important matters, her legal knowledge was incomplete or erroneous.
[6] Ms. Leandre does not dispute that in February 24, 2012, she mortgaged the residential property registered in her name in Windsor, Ontario. The mortgage was granted to the TD Bank. The term of the mortgage was for five years, and the mortgage secured a loan for $150,615.85. The mortgage stipulates monthly blended installment payments of principal and interest of $871.00.
[7] Mr. Raji is not a registered owner, and he is not a party to the loan agreement or the mortgage.
[8] Although perhaps Ms. Leandre does not recall it, she signed documentation that authorized the TD Bank to withdraw installment payments from an account she had from the Royal Bank of Canada (“RBC”). There is no merit to her allegations of frauds or forgeries or tampering with her RBC account.
[9] Indeed, it appears that there was no problem with the payment arrangements between Ms. Leandre, RBC, and the TD Bank between February 2012 and August 1, 2014 when default in payment to the TD Bank occurred. Ms. Leandre disagrees that a default occurred, and she says that there was money in her RBC account. I find however, that she is mistaken, and a default in payment occurred in August 2014. A subsequent payment was made on account of arrears of interest, but the loan remained in default.
[10] On November 7, 2014, the TD Bank made written demand for payment of the loan. It is unfortunate that Ms. Leandre does not appear to have been aware of her legal rights under the Mortgages Act, R.S.O. 1990, c. M.40 to pay just the arrears to bring the mortgage loan into good standing, but persisting in her mistaken belief that the mortgage loan account was in good standing, she made no payments.
[11] If there was not a default in payment before November 2014, there certainly has been one since November and it has persisted to this day.
[12] After August 2014, it appears that Ms. Leandre was under the misapprehension that only employees of the branch of the TD Bank from which she had negotiated the loan agreement could speak for the TD Bank. It was her view that the TD Bank was acting improperly in having other employees communicate with her in an effort to collect on the loan. Again, she is mistaken.
[13] In any event, on November 28, 2014, Tim Chiesa, a representative of the TD Bank, attended at the house/property in Windsor and found the property to be unoccupied. He was told by a neighbour that Ms. Leandre had moved.
[14] At the hearing of the summary judgment motion, Ms. Leandre told me that she and her family had moved to Quebec, where her husband could find work with a family member.
[15] Ms. Leandre said that she left valuable personal property in the Windsor property that she intended to retrieve.
[16] On December 12, 2014, the TD Bank took possession of the Windsor property and changed the locks.
[17] On December 22, 2014, the TD Bank issued a Notice of Sale under Mortgage, which remains operative to this day.
[18] There is no genuine issue for trial that Ms. Leandre owes the TD Bank $148,028.70, as at March 25, 2015, together with interest at the rate of 3.29 percent per annum. There is no genuine issue for trial that Ms. Leandre has no defence to this mortgage debt action.
[19] On January 28, 2015, Mr. Raji and Ms. Leandre commenced their own action against the TD Bank. The essence of the action is that the Plaintiffs allege that the TD Bank fabricated a default and that the bank wrongfully took possession and commenced enforcement proceedings to steal the Windsor property and the personal property within it.
[20] On the evidentiary record, the Plaintiffs’ claim, which would also be a defence to the TD Bank’s counterclaim to enforce the mortgage, is simply not made out.
[21] Apart from the fact that there are serious issues about how Mr. Raji’s and Ms. Leandre’s action has been pleaded, there is no genuine issue for trial that the action is without merit. I find as a fact that the TD Bank was entitled to enforce its loan, take possession of the property in Windsor, and proceed with power of sale proceedings in the normal course.
[22] Therefore, the TD Bank is entitled to a summary judgment dismissing Mr. Raji’s and Ms. Leandre’s action and to a judgment on its counterclaim against Ms. Leandre with costs on a substantial indemnity basis as contracted for under the mortgage. I fix those costs at $10,520.75, all inclusive of disbursements and taxes.
[23] I add that this judgment is without prejudice to Ms. Leandre’s claim for an accounting of the proceeds of any mortgage sale and the judgment is without prejudice to any claim that any sale of the property was improvident.
[24] Judgment accordingly.
Perell, J.
Released: June 1, 2015
CITATION: Raji v. TD Bank Financial Group, 2015 ONSC 3530
COURT FILE NO.: CV-15-520753
DATE: 20150601
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ABDUL RAZAQ RAJI and SHERLEY LEANDRE
Plaintiffs
– and –
TD BANK FINANCIAL GROUP
Defendant
REASONS FOR JUDGMENT
PERELL J.
Released: June 1, 2015