L-Jalco Holdings Inc. v. MacPherson
Ontario Reports Ontario Superior Court of Justice, Mew J. June 29, 2017 138 O.R. (3d) 330 | 2017 ONSC 4055
MOTION for summary judgment dismissing an action.
William P.H. Procter, for plaintiff. G. Edward Lloyd, for defendant (moving party).
[1] MEW J.: — This motion raises the issue of whether a mortgagor who failed or neglected to address a prior charge on [page332] a commercial property prior to registering its security should nevertheless be entitled to the remedy of equitable subrogation to give its security interest priority.
Background
[2] In 2004, Beverly MacPherson lent Joseph Murano $49,900. This loan was secured by way of a mortgage in Ms. MacPherson's favour on a commercial property located at the corner of Queen and Division Streets in Kingston, provided by Mr. Murano's company, 873047 Ontario Ltd., and personally guaranteed by Mr. Murano.
[3] At the time of this transaction, the MacPherson mortgage stood in second place to a mortgage held by Dwight Powell. In 2005, Mr. Powell advanced further sums and registered a new mortgage in the sum of $499,070.73 in place of his previous one. Ms. MacPherson agreed to postpone her mortgage so that Mr. Powell's mortgage remained first in priority and hers was second. This agreement was evidenced by way of a document general registered against the title of the property.
[4] In 2008, Mr. Murano told Ms. MacPherson that he was planning to refinance. He asked her if she would postpone her mortgage to give the new mortgagee priority. Ms. MacPherson refused to do so, telling Mr. Murano that he could pay her off if he wished. Mr. Murano did not take her up on this suggestion.
[5] On September 3, 2008, Mr. Murano's company, 873047 Ontario Ltd., gave a mortgage to the plaintiff, L-Jalco, for $1,100,000. The balance of Dwight Powell's first mortgage, then standing at $463,662.97, was paid out. The plaintiff's evidence is that it also, at around that time, paid tax arrears on the property in the amount of $75,221.72.
[6] As reflected in the statement of claim, at para. 10, after these transactions, the following priorities applied:
(a) the mortgage in favour of Beverly MacPherson for $49,900 ranking first in priority; (b) the mortgage for $1,100,000 to L-Jalco Holdings Inc. ranking second in priority; (c) no tax arrears certificate.
[7] According to John Lawrynowicz, the president of L-Jalco, he and his lawyer at the time, his son Calin Lawrynowicz, believed that the plaintiff was to have a first mortgage on the property. Ms. MacPherson, on the other hand, says that, after her conversation with Murano about his refinancing plans, she [page333] had heard nothing further and was thus unaware that the property had, in fact, been remortgaged.
[8] It is common ground, however, that the MacPherson mortgage was not discharged or postponed.
[9] Mr. Lawrynowicz (senior) says that he did not become aware of the MacPherson mortgage until 2011-12 when, 873047 Ontario Ltd. having defaulted on the L-Jalco mortgage, the plaintiff moved to enforce its security. Power of sale proceedings were commenced, without notice to Ms. MacPherson. The property was, in fact, then sold for $425,000: the agreement of purchase and sale is dated June 13, 2012.
[10] In August 2012, prior to that transaction closing, Ms. MacPherson received a message from a solicitors' office asking if she had been paid out and if she had discharged. A week later, she went to see her then solicitor, Mr. Kaminer. According to Ms. MacPherson, Mr. Kaminer asked her to sign a discharge for her mortgage so that the sale of the property could go through. He told her that the money would be held in trust for her. At this juncture, Ms. MacPherson says that she still did not know about the power of sale and thought that the property was being sold in the ordinary course of business. Nor did she know that there was any dispute as to whether or not she would be paid.
[11] Ms. MacPherson signed the discharge. She did so because, by that time,
My mortgage was ranked first in priority. I did not agree to postpone my mortgage. I only agreed to discharge my mortgage to allow the sale to go through on the understanding and in the belief that I would then be paid.
[12] The sum of $60,000 was, according to the application record which instituted the current proceedings (the application was subsequently converted into an action), to be paid into court pending resolution of a dispute as to whether effect should be given to the priority asserted by the defendant. Counsel advised that security was instead provided through a standby letter of credit from the plaintiff in favour of the plaintiff's solicitors in trust.
[13] The defendant has twice had to apply to the court to extend and vary the letter of credit in order to preserve its security. The letter of credit currently in force is for $120,000.
Availability of Summary Judgment
[14] Neither party challenges the appropriateness of summary judgment to resolve all of the issues raised in this action, including both the relief sought by the plaintiff (which the defendant [page334] says should be refused and the action dismissed) and the defendant's counterclaim for recovery of the sum secured by the letter of credit.
[15] I am satisfied that the facts, even where the evidence is disputed, are readily ascertainable from the record and confident, as a result, that I can find the necessary facts, utilizing the powers conferred by rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, where necessary, and apply the law to those facts to reach a just conclusion.
Equitable Subrogation
[16] The principle of equitable subrogation, in the context of mortgage claims, was succinctly stated by Lord Jenkins, on behalf of the Privy Council, in Ghana Commercial Bank v. D.T. Chandiram, [1960] A.C. 732 (J.C.P.C.), at p. 745:
It is not open to doubt that where a third party pays off a mortgage he is presumed unless the contrary appears to intend that the mortgage shall be kept alive for his own benefit.
[17] As noted in Mutual Trust Co. v. Creditview Estate Homes Ltd. (1997), 34 O.R. (3d) 583, [1997] O.J. No. 3258 (C.A.), the doctrine of equitable subrogation is usually called into play because of a mistake or inadvertence. It provides a remedy if, as a result of an error, a lender loses or is denied a priority for which it had bargained.
[18] It is a remedy, however, that will not be available if it results in an injustice being done if that lender's priority is restored: Brown v. McLean (1889), 18 O.R. 533, [1889] O.J. No. 136 (H.C.J.), at p. 537 O.R.
[19] Courts have consistently held that the fundamental principle underlying the doctrine is one of fairness in light of all of the circumstances.
Issue
[20] The issue raised on this motion for summary judgment, brought by the defendant, is whether, as the defendant claims, her mortgage remained in priority to the plaintiff's mortgage at the time she agreed to the discharge of her mortgage, or whether, as the plaintiff claims, it is entitled to rely on the principle of equitable subrogation to assert that it has first priority to the extent of the funds which it advanced to pay out the Powell first mortgage and the tax arrears existing at that date.
[21] Although the motion was brought by the defendant, I took the view that the plaintiff has the onus of establishing [page335] the availability of the remedy and the oral submissions received were structured accordingly.
Position of the Parties
[22] The plaintiff claims that it was only through inadvertence that the MacPherson mortgage was not discharged or postponed in 2008. The plaintiff's evidence is that its lawyers understood that the MacPherson mortgage was to be discharged independently of any advance of funds on the L-Jalco mortgage.
[23] The plaintiff points to a letter, written in 2012, by Arlinda Aragao, a lawyer with Calin Lawrynowicz's firm, which said:
In a previous conversation you agreed that the mortgage should have been discharged in the past. It is our understanding that there has been no demand on the mortgage. If our understanding is incorrect, please advise.
[24] In the absence of any response to this letter, the plaintiff asks the court to conclude that the defendant's former lawyer in fact agreed that the mortgage should have been discharged.
[25] The defendant denies that there was any agreement or undertaking to discharge the MacPherson mortgage and argues that the plaintiff knew exactly what the true state of affairs was in 2008.
[26] An internal e-mail from a law clerk at the firm acting for the plaintiff in connection with the 2008 financing, states, in respect of the MacPherson mortgage: "I understand that this will be removed from title on the day of closing".
[27] And Daniel Serruya, a self-styled "business consultant" who was involved in the 2008 transaction on behalf of the plaintiff, sent an e-mail to, amongst others, Calin Lawrynowicz (copied to Mr. Kaminer and Mr. Murano) noting: "Undertaking from Kaminer to be provided for payout of second mortgage ($50,000) prior to payout of 1st mortgage."
[28] An affidavit from Mr. Murano offers this perspective:
Whilst negotiating this loan I discussed Ms. MacPherson's Mortgage with Calin. He was fully aware that Ms. MacPherson had a mortgage over the Property and that it would rank first in priority if neither postponed nor discharged. He wanted the L-Jalco mortgage to be first in priority and asked me to ask Ms. MacPherson to postpone her mortgage.
She refused to postpone.
I told Calin that Ms. MacPherson would not postpone.
. . . . . [page336]
Knowing that Ms. MacPherson's Mortgage had priority over L-Jalco's mortgage Calin told me that there was another $750,000 going to be advanced (he had already advanced money on other properties as part of the deal) and that he would pay out Ms. MacPherson's mortgage.
[29] There is no evidence from Calin Lawrynowicz to refute Mr. Kaminer's account of his discussions with him.
[30] John Lawrynowicz claims to have been unaware of Ms. MacPherson's mortgage until 2012.
[31] Although Daniel Serruya says that Mr. Kaminer had indicated that "he was undertaking to pay out and discharge" the MacPherson mortgage, the defendant submits that implicit in any such undertaking, even if it was given (Mr. Kaminer says that it was not and there is nothing in writing from him confirming an undertaking), would be that Ms. MacPherson's mortgage would be paid out by the plaintiff.
[32] The defendant also points to the statutory declaration made by the plaintiff's solicitor in connection with the power of sale proceedings in 2012 in which it was stated that a "thorough search" had been made at the Land Registry Office and that "no persons entitled to notice of exercising the power of sale" other than those listed (which did not include the defendant) had been found. Given that the defendant's charge was registered at the time in priority position, the defendant asks the court to infer that the plaintiff's solicitor must have recognized the defendant's priority at the time of making this declaration.
[33] From all of this, the defendant further argues that this is not a clear-cut case of a secured lender falling victim to a mistake which, if rectified by granting the remedy of equitable subrogation, would leave the defendant no worse off than she would have been if the plaintiff had simply taken an assignment of the Powell mortgage rather than paying it out. Rather, she says that the plaintiff knew all along that the defendant had priority but, instead of paying out the defendant's mortgage, the plaintiff went ahead, obtaining a much higher rate of interest on its loan than the mortgage it replaced. Taken together with other aspects of the plaintiff's conduct, the defendant asserts bad faith and a lack of clean hands which, it argues, should deprive the plaintiff of an equitable remedy.
[34] The plaintiff, while not conceding that it knew about the MacPherson mortgage and, hence, its priority position, in essence says, "so what?" It argues that the focus should be solely on where the defendant stood at the time the Powell mortgage was replaced by the L-Jalco mortgage. The plaintiff places great emphasis on the fact that it can stand in no better position, vis-à-vis the defendant, than the Powell mortgage which it [page337] replaced: Elias Markets Ltd. (Re) (2005), 77 O.R. (3d) 461, [2005] O.J. No. 3684 (S.C.J.), at paras. 42-43.
[35] Specifically, the L-Jalco mortgage replaced aggregate debt of $538,884.69 (comprising of the balance of the Powell mortgage and the arrears of property taxes -- the right of subrogation including not only the amount of the mortgage that L-Jalco retired but, also, the city taxes that it paid on behalf of the mortgagor: Elias Markets Ltd. (Re), at para. 50). The plaintiff argues that the defendant would be unjustly enriched if she was now allowed to jump ahead of the $538,884.69 paid by L-Jalco to replace the Powell mortgage behind which the defendant sat in second place. Put another way, L-Jalco argues the defendant is not prejudiced because she would be in no better position now if the Powell mortgage, instead of being replaced, had been assigned. The court should not be distracted by the fact the L-Jalco mortgage was for $1.1 million secured against several properties or by the fact that the replacement of the Powell mortgage was only one element of the application of the funds provided by L-Jalco to the mortgagor. According to the plaintiff, these factors are irrelevant.
Analysis
[36] I consider first whether the plaintiff's failure to address the defendant's mortgage at the time of refinancing was as a result of a mistake or an oversight.
[37] I do not accept that the defendant or her solicitor are in any way responsible for the failure of the plaintiff to deal with the defendant's mortgage. In particular, I do not regard what is essentially self-serving correspondence between solicitors as satisfactory evidence of the existence of a recognition, let alone an agreement, that the MacPherson mortgage should have been, let alone was, in fact, subordinated to the plaintiff's charge. Furthermore, Mr. Kaminer says that upon receipt of the letter from Lawrynowicz and Associates, he reviewed his file, refreshed his memory, interviewed Ms. MacPherson and determined that he had never, in fact, prepared a discharge.
[38] The record amply supports a conclusion that the plaintiff, for whatever reason, consciously elected not to pay out the MacPherson mortgage or was indifferent about whether or not it was paid out. Calin Lawrynowicz certainly knew about the MacPherson mortgage. And Daniel Serruya knew about it too. They were the plaintiff's agents. Through one or more of them, the plaintiff also knew (or is deemed to have known) that Ms. MacPherson had expressly declined to postpone her mortgage in favour of what became the L-Jalco mortgage. [page338]
[39] The defendant invited me to speculate that the decision not to pay out Ms. MacPherson was a calculated one. Perhaps. But what can be said with some certainty is that had the plaintiff truly believed that the MacPherson mortgage, which the plaintiff's solicitors' "thorough search" of the land registry records would have shown in priority position, was in fact in second position, Ms. MacPherson should have been served when power of sale proceedings were brought. Another error? I think not.
[40] The cases on equitable subrogation do not go as far as expressly requiring a mistake or negligence as an absolute prerequisite to the availability of the remedy. But as the Court of Appeal observed in Mutual Trust, mistake or inadvertence are common denominators when the remedy is sought. If the doctrine is underpinned by the objective of achieving fairness in all of the circumstances, it is difficult to conceive of circumstances in which the remedy should be granted to a party which knowingly took the risk of not addressing another secured party's prior charge.
[41] On that basis alone, I would deny the plaintiff its claim for equitable subrogation.
[42] Even if I am wrong in my assessment of the evidence concerning the plaintiff's knowledge, and assume that there was a mistake and that when the plaintiff paid out the Powell mortgage and paid off the arrears of municipal taxes, it did so in the belief that its security would be a first charge against the property, as the cases already referred to make clear, the existence of negligence or a mistake would not, alone, be determinative of the availability of equitable subrogation.
[43] In the Mutual Trust case, the owners of the family home had granted mortgages to Scotia Mortgage. A certificate of pending litigation was subsequently registered against the property. Mutual Trust then agreed to refinance the home property, to be secured by first charge. The Scotia mortgages were discharged. However, as a result of solicitors' negligence, no request was made for subordination of the CPL to the Mutual Trust charge. When Mutual Trust became aware of the CPL it sought an order declaring that the CPL was subordinate to the Mutual Trust charge. The application succeeded on the grounds that the Mutual Trust charge was subrogated to the Scotia mortgages which it had replaced and, accordingly, it ranked ahead of the CPL. The Court of Appeal, at para. 4, summarized the argument in favour of subrogation as follows:
The argument for subrogation was put on the basis that, by virtue of a solicitor's error, a lender had lost or been denied the priority for which it had bargained. On the other hand, a mortgagee, execution creditor, or plaintiff [page339] had received a windfall in the form of a higher priority than that for which it had bargained. In a sense, the mortgagee, lender or execution creditor was potentially unjustly enriched.
[44] In reviewing the facts in Mutual Trust and the analysis both by the Court of Appeal and by Adams J. at first instance ([1994] O.J. No. 2209, 28 C.B.R. (3d) 208, 41 R.P.R. (2d) 217 (Gen. Div.)), three distinct differences between the circumstances in that matter and those in the instant case emerge.
[45] First, Mutual Trust was unaware of the CPL. By contrast, in the present case the plaintiff, its lawyers and its agent Mr. Serruya (the business consultant), knew about the MacPherson mortgage prior to the refinancing and had flagged the need to obtain a discharge.
[46] Second, unlike in Mutual Trust, the MacPherson mortgage had been the subject of some discussion. In fact, Ms. MacPherson had expressly declined to agree to her mortgage standing in second place to Mr. Murano's new lender (albeit she may not have known at the time who that lender and what the particulars of the loan would be).
[47] Third, again in contrast to the facts in Mutual Trust, the L-Jalco mortgage, described in the record as a "blanket" mortgage over multiple properties, was for an amount that vastly exceeded the value of the property (while the record suggests that the total amount actually advanced may have been less than $1,100,000, it would nevertheless appear to have significantly exceeded the value of the subject property). Furthermore, the terms of the L-Jalco mortgage included an interest rate -- 12 per cent, compounded monthly -- that was markedly different to the Powell mortgage at 8 per cent half yearly, not in advance. Indeed, the L-Jalco mortgage covered six properties and has already been the subject of at least five other actions, as appears from a decision of Polowin J. in L-Jalco Holdings Inc. v. 1652632 Ontario Ltd., [2012] O.J. No. 3056, 2012 ONSC 3410 (S.C.J.), in which she dealt with a summary judgment motion for possession of the mortgaged properties and for judgment on the covenants on the mortgage.
[48] In Mutual Trust, Adams J. noted at first instance, at para. 19:
Creditview [the CPL claimant] is not prejudiced by the subrogation of Mutual Trust to the Scotiabank mortgages. It could not have prevented the refinancing from going ahead. If Creditview had refused to voluntarily subordinate to the replacement financing, Mutual Trust could have required Scotiabank Mortgage Corporation and the Bank of Nova Scotia to convey their mortgage debts and their first and second ranking interest in the mortgaged property. See Mortgages Act, R.S.O. 1990, c. M.40, s. 2(1), (2). The Mutual Trust mortgage does not exceed the aggregate amount of the [page340] Scotiabank mortgages. The interest rate is less and, if relevant, the term is not materially different.
[49] The plaintiff argues that the existence of the option for the plaintiff to have simply taken an assignment of the Powell mortgage underscores the absence of real prejudice.
[50] It should be recalled that Mutual Trust was one of three appeals argued before the same panel on the same day.
[51] In one of the other cases, Armatage Motors Ltd. v. Royal Trust Corp. of Canada (1997), 34 O.R. (3d) 599, [1997] O.J. No. 3259 (C.A.), the court, in a split decision, upheld the decision of the trial judge to deny the remedy of equitable subrogation. CIBC had had a first mortgage for $400,000. The plaintiff, a private lender, secured his subsequent loan of $91,000 with a second mortgage. The borrowers had told the plaintiff that the property was worth between $750,000 and $800,000. The CIBC mortgage was replaced by a Royal Trust mortgage of $476,500. This was based upon the loan being secured as a first mortgage and a valuation of $700,000. The solicitor acting for the borrower and Royal Trust was unaware of the second mortgage. Sometime later, the plaintiff found out about the Royal Trust mortgage. He consulted a lawyer who advised him that his mortgage now ranked ahead of the Royal Trust mortgage and that he was "secure". The borrower then fell into tax arrears and stopped making payments on the second mortgage. Enforcement proceedings were taken in which an issue arose as to whether the plaintiff's mortgage ranked ahead of that of Royal Trust. The property was, in the meantime, sold for $500,000.
[52] The Court of Appeal noted that in the other two matters that it heard concurrently with Armatage Motors, there was no injury caused to either party against whom subrogation was sought. In Armatage Motors, however (at para. 26),
. . . it is very clear that if subrogation is allowed, Armatage will recover no part of its $91,000 mortgage. Royal Trust would rank ahead of Armatage to the extent of $412,379.34, as would the taxes then amounting to $71,788.96, and the real estate commission of $16,050, a total of $506,218.30.
[53] Whereas in Armatage Motors, the court noted that the record did not reveal what the plaintiff would have done had it known that it was second in priority, in her affidavit in the present case, Ms. MacPherson stated:
When Mr. Powell remortgaged in 2005 I agreed to postpone to him because I believed that there was sufficient value in the Property to pay both his $499,000 mortgage and my mortgage. I would never have agreed to postpone to a $1,100,000 mortgage. That would have made my mortgage worthless. [page341]
[54] The majority of the Court of Appeal in Armatage Motors concluded that because of the particular combination of circumstances presented -- Armatage having to some extent relied on the abstract and the advice that he was "secure", Royal Trust appearing to have an alternative remedy against its solicitor, Armatage being certain to suffer a serious loss and subrogation being a discretionary remedy -- the decision of the trial judge not to grant the remedy should stand.
[55] Brooke J.A. wrote a powerful dissent in Armatage Motors. It appears to have turned in part on the evidence that the plaintiff in that case had knowingly taken advantage of a mistake by relying on title, even though he knew of the interest of Royal Trust. Brooke J.A. cited [at para. 53] with approval the following statement of Linden J. in Bramber Consulting, Management and Service Corp. v. Commerce Capital Mortgage Corp. (1981), 36 O.R. (2d) 601, [1981] O.J. No. 3227, 22 R.P.R. 17 (H.C.J.), at p. 29 R.P.R.:
. . . It seems that a person cannot take advantage of another person's error in order to better his own position in relation to priority, when he is actually aware of that error. Our courts hold that it is inequitable to do so in such circumstances, and consequently, the Courts do not allow that.
[56] In the present case, it cannot be said that Ms. MacPherson has knowingly sought to take advantage of the plaintiff. If anything, it is the plaintiff which has sought to take advantage of her.
[57] The prejudice which would be inflicted on Ms. MacPherson, should her security be relegated to second position, would be significant: counsel are agreed that if L-Jalco is granted equitable subrogation, Ms. MacPherson will recover none of her security.
[58] Recall that not long before the refinancing took place, Ms. MacPherson had been expressly asked to postpone the mortgage and had declined to do so. If she had maintained that position vis-à-vis the plaintiff, there would presumably have been a negotiation which would either have resulted in the plaintiff paying out the defendant or accepting her priority. In that regard, a reasonable inference to draw from the plaintiff's evidence and, in particular, the law clerk's e-mail in 2008, is that had the plaintiff been alerted to the defendant's mortgage at the time of the 2008 refinancing, it would have taken it out, just as it did the arrears of taxes, in order to obtain first position.
[59] The plaintiff argues that the court should not speculate as to what might have happened if the MacPherson mortgage had not been ignored. In Midland Mortgage Corp. v. 784401 Ontario Ltd. (1997), 34 O.R. (3d) 594, [1997] O.J. No. 3257 (C.A.), the [page342] other case in the equitable subrogation trilogy of cases heard by the Court of Appeal, the lender resisting the remedy argued that, had they been asked to postpone their charge, they would have been in a position to negotiate some benefit to themselves, such as a payout of their charge, a reduction of it or a bonus. Austin J.A. rejected this argument, stating, at para. 19:
By limiting Midland's subrogation right, as noted earlier, to the amount actually advanced to discharge the old Midland charge and plus 12.25% interest, both of these suggestions of prejudice are met. The Michelis do not receive any "windfall" by reason of the failure of Midland's solicitor to either take an assignment of Midland's old charge or get a postponement from the Michelis, nor are they any worse off than they were before the new Midland charge was proposed.
[60] An important distinguishing feature in Midland Mortgage, as already noted, was that there was no injury to the party against whom subrogation was sought. In the present case, however, an assessment of fairness to the parties and the prevention of unjust enrichment should not, in my view, ignore the fact that after the L-Jalco refinancing, the borrower was responsible for servicing a mortgage far more onerous in its terms that the Powell mortgage. Clearly, this would have depleted the borrower's resources to a greater degree than the Powell mortgage.
[61] Furthermore, while Ms. MacPherson, ignorant of what was going on, continued to believe her mortgage was secure, the plaintiff took enforcement proceedings against the property (becoming a mortgagee in possession and receiving rents) and against the guarantors. By the time Ms. MacPherson found out what had happened, it was too late. The cupboard was bare, cleaned out by the plaintiff.
[62] I see no reason, logically or applying a fairness standard, to overlook what was really going on.
[63] Having taken into account all of the circumstances, I am not persuaded that equitable subrogation would be either fair or equitable in this case.
[64] Accordingly, judgment will go dismissing the plaintiff's claim and allowing the counterclaim.
[65] If there are any issues relating to the form or content of the formal judgment, I can be spoken to.
Costs
[66] I am presumptively of the view that the defendant should have her costs of the action including the motion for summary judgment. I understand that counsel have exchanged costs summaries. If counsel are unable to agree on costs, I direct as follows: [page343]
(a) the defendant should (if she has not already done so) serve a bill of costs on the plaintiff, accompanied by written submissions within 14 days of the release of these reasons; (b) the plaintiff should serve its response on the defendant within seven days thereafter; (c) the defendant should serve her reply, if any, within seven days thereafter; (d) in all cases, the written submissions should be limited to three pages, plus bills of costs; and (e) the plaintiff is invited to submit the bill of costs it would have presented to the court had it been successful in the action and the motion.
[67] I would ask counsel for the defendant to collect copies of all of the parties' submissions and arrange to have the package delivered to me care of the trial coordinator in Kingston as soon as the final exchange of materials has been completed. For the avoidance of doubt, no further materials should be filed individually; rather, counsel for the defendant should assemble a single package for delivery as described above.
Motion granted.