Ontario Superior Court of Justice
COURT FILE NO.: CV-18-1292 DATE: 20200501
BETWEEN:
MCC MORTGAGE HOLDINGS INC. Plaintiff
– and –
ALIAMISSE OMAR MUNDULAI and YING HUANG Defendants
Counsel: Jeffrey Kukla for the Plaintiff Mr. Mundulai acting in person
HEARD: In Writing
REASONS FOR DECISION
C. BOSWELL J.
INTRODUCTION
[1] The plaintiff is a mortgage lender. The defendants mortgaged their home in Maple to the plaintiff as security for a $190,000 loan. The loan went into default. The plaintiff sued and obtained default judgment for payment and for possession of the mortgaged premises. The defendants were lawfully evicted from the premises. The plaintiff entered into an agreement to sell them to a third party to realize on its security. The defendant, Mr. Mundulai, re-entered the premises and refuses to leave.
[2] The plaintiff seeks a writ of possession and an order directing the Sheriff of the Regional Municipality of York, with the assistance of the York Region Police Service, to remove the defendant from the premises.
[3] The defendant asks for an order staying all mortgage enforcement proceedings, setting aside the plaintiff’s default judgment, discharging the plaintiff’s mortgage upon payment into court of the sum of $190,388.89 and compelling the plaintiff to return all of the defendants’ personal property removed from the premises by the plaintiff.
[4] On March 17, 2020 the Chief Justice of the Superior Court of Justice suspended the normal operations of the court in the face of the COVID-19 pandemic. The court has been available to hear a variety of urgent motions. On April 20, 2020 I directed that I would hear this motion in writing on an urgent basis. Having received and reviewed the parties’ written materials, and for the reasons that follow, the plaintiff’s motion is granted. The defendant’s motion is dismissed.
[5] To understand the disposition of this motion, it is imperative to know something about the history of the proceedings between the parties.
THE HISTORY OF PROCEEDINGS
The Mortgage
[6] The defendants granted the plaintiff a mortgage to secure an advance of $190,000 on May 31, 2016. The mortgage had a two year term and was secured as a second charge against a property owned by the defendants and known municipally as 176 Sir Stevens Drive, Maple, Ontario.
[7] The mortgage went into default on July 1, 2018 and default continues. In addition, as of the end of March 2020, there were outstanding municipal taxes owing against the premises in the approximate amount of $30,000.
The Action
[8] The plaintiff issued a statement of claim seeking payment of the mortgage balance and possession of the mortgaged premises on August 22, 2018. The defendants failed to defend and default judgment for payment and possession was issued on February 12, 2019.
[9] In addition, a Notice of Sale Under Mortgage was served on September 17, 2018.
The Motion to Set Aside the Default Judgment
[10] On April 15, 2019 Mr. Mundulai served a motion to set aside the default judgment. The motion was heard July 23, 2019 by Justice J. McCarthy and dismissed, with costs to the plaintiff of $7,500. Those costs have not been paid.
The Writ of Possession
[11] The plaintiff obtained a writ of possession for the mortgaged property on April 12, 2019 on the strength of its default judgment. The plaintiff held off enforcing the writ pending the outcome of the defendants’ motion to set aside the default judgment.
[12] An eviction was scheduled by the Sheriff of the Regional Municipality of York for September 4, 2019. It was aborted however, when the defendant, Ms. Huang, advised counsel to the plaintiff that she had found a purchaser for the property with a proposed closing date of October 31, 2019. Ms. Huang was unable to obtain Mr. Mundulai’s consent to the sale. She applied in family court for an order authorizing the sale but was unsuccessful.
[13] A new eviction date was set for January 8, 2020 and the writ of possession was executed on that date. The plaintiff went into possession of the property. Mr. Mundulai’s personal belongings were placed into storage. The plaintiff’s counsel has written to him several times asking him to collect his property, but to date he has not done so.
The Agreement to Sell
[14] The plaintiff listed the subject property for sale on March 5, 2020 at a list price of roughly $1.28 million. The property was sold on March 11, 2020 with a closing date scheduled for May 12, 2020.
The Order of the Chief Justice
[15] As I noted, the normal operations of the Superior Court of Justice were suspended by Order of the Chief Justice on March 17, 2020.
[16] On March 19, 2020, the Chief Justice suspended the eviction of residents from their homes pursuant to writs of possession, unless the court orders otherwise.
The Re-Entry
[17] On April 6, 2020, Mr. Mundulai advised the plaintiff that he had re-occupied the mortgaged premises.
The Granting of Leave
[18] On April 20, 2020 I granted the plaintiff leave to move for a writ of possession and associated orders. I scheduled a hearing of the motion in writing and set a timetable for the filing of materials.
The Extension
[19] At Mr. Mundulai’s request, on April 24, 2020 I extended the time for him to file materials to April 28, 2020. I directed that any reply materials be filed by April 30, 2020. I have now received and reviewed the parties’ materials and am in a position to deliver this ruling.
THE PARTIES’ POSITIONS
[20] The plaintiff’s position is straightforward. It followed proper legal processes to enforce its mortgage. It lawfully obtained possession of the property on January 8, 2020 and entered into an agreement to sell the property to realize on its mortgage, as it is lawfully entitled to do.
[21] The plaintiff submits that Mr. Mundulai has resorted to self-help and has flouted lawful processes. He has taken advantage of the COVID-19 crisis to attempt to frustrate and delay the plaintiff’s lawful enforcement of its mortgage security.
[22] Mr. Mundulai filed an affidavit in opposition to the plaintiff’s motion and in support of his own motion to stop the plaintiff’s enforcement proceedings.
[23] Mr. Mundulai provided a great deal of evidence about circumstances that occurred prior to the motion on July 23, 2019 when his motion to set aside the default judgment was dismissed.
[24] Mr. Mundulai also confirmed that he re-occupied the subject residence at some point after March 29, 2020. He said his reason for doing so was that the house was left abandoned. He made note of some of the conditions inside the home, but of course they could not have been a justification for his re-entry because he did not know of them until he re-entered.
[25] The thrust of Mr. Mundulai’s position is that he wants to redeem the mortgage by paying money into court.
[26] I note that Ms. Huang has not participated in this motion. She is not in occupation of the subject premises and is separated from Mr. Mundulai.
DISCUSSION
[27] This is not a difficult case to decide. Mr. Mundulai’s actions in re-entering the premises were wrong. The court gave a judgment for possession to the plaintiff. The Sheriff lawfully evicted the defendants. The plaintiff is, in the eyes of the law, the party entitled to possession of the mortgaged premises.
[28] Mr. Mundulai decided to take the law into his own hands by re-entering the premises. His timing is hugely suspicious. Indeed, it appears to me that Mr. Mundulai sought to take advantage of the Chief Justice’s Order suspending the enforcement of writs of possession.
[29] I think it clear that the Chief Justice did not intend his Order to shield the conduct of parties who attempt to unlawfully retake possession of residences they have been lawfully evicted from.
[30] Mr. Mundulai claims to want the opportunity to redeem the mortgage by paying the balance outstanding into court. His claim is, in my view, disingenuous. His proposal is to pay $190,388.90 into court. Not only do I think it unlikely that Mr. Mundulai has those funds immediately available, but they will not be sufficient to discharge the plaintiff’s mortgage in any event.
[31] The plaintiff has judgment for $218,025.47, plus interest at 9.99% from and after February 12, 2019. The current balance of the mortgage is therefore in excess of $240,000. On top of that the defendants owe the plaintiffs $7,500 in costs ordered by Justice McCarthy.
[32] Mr. Mundulai is stalling.
[33] Much of the material he has filed on this motion mirrors what was before Justice McCarthy. To my knowledge Mr. Mundulai has not appealed Justice McCarthy’s order.
[34] There is no merit to Mr. Mundulai’s position. It would be an affront to the rule of law for the court to enable his tactics. His motion is dismissed. He is, however, entitled to his personal possessions and may contact the plaintiff to obtain them.
[35] The plaintiff’s motion is granted. I make the following orders:
The plaintiff shall have a issue a writ of possession against 176 Sir Stevens Drive, Maple, Ontario.
Given the suspension of the court’s normal operations, this order shall constitute a writ of possession in favour of the plaintiff against 176 Sir Stevens Drive, Maple, Ontario. The Sheriff of the Regional Municipality of York is directed to accept this order as a writ of possession.
The Sheriff of the Regional Municipality of York is directed to forthwith enter and take possession of the following lands and premises and to provide them to the plaintiff:
LOT 1, PLAN 65M4019, VAUGHAN, S/T EASE FOR ENTRY AS IN YR1108869 S/T EASE FOR ENTRY IN YT1236409.
Property Identification Number 03341-3654 (LT)
And Municipally known as 176 Sir Stevens Drive, Maple (Vaughan), ON L6A 0G6
Mr. Mundulai shall not interfere with the execution of the writ of possession.
The York Regional Police Service is directed to provide such assistance as may be necessary to give effect to this order and to assist the Sheriff of the Regional Municipality of York in the execution of the writ of possession.
The plaintiff is entitled to its costs of this motion against Mr. Mundulai. The plaintiff may make written costs submissions within 2 weeks. Mr. Mundulai shall have a week thereafter to make any submissions in response. Submissions shall not exceed 2 pages in length.
[36] I invite the plaintiff to submit a draft formal order.
Boswell J.
Released: May 1, 2020