COURT FILE NO.: CV-19-00630773-0000
DATE: 2020/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
368230 ONTARIO LIMITED
Plaintiff
- and -
JESSE AMMAR
Defendant
Avrum D. Slodovnick for the Plaintiff
Jonathan Rosenstein for the Defendant
HEARD: November 24, 2020
PERELL, J.
REASONS FOR DECISION
[1] The Plaintiff 368320 Ontario Ltd. is a mortgagee. The Defendant Jesse Ammar is a mortgagor. The Plaintiff brings a motion for a summary judgment for: (a) judgment on the covenant; (b) judgment for possession; (c) a writ of possession; and (d) costs of the motion and of the action on a substantial indemnity basis. For the reasons that follow, the motion is granted.
[2] On February 14, 2020, on consent, Justice Myers set a timetable for this summary judgment motion. The Plaintiff complied with the timetable. Mr. Ammar has not. He has not served any materials, nor responded to invitations from the Plaintiff to do so.
[3] The background facts are:
a. The Plaintiff is a private mortgage lender.
b. In November 2018, Mr. Ammar borrowed $5.5 million from the Plaintiff. The loan was secured by a promissory note and a first mortgage registered as instrument No: YR2898202 in Land Registry Office #65 against the property known municipally as 5646 Major Mackenzie Drive East, Markham.
c. The mortgage contained the Plaintiff’s standard charge terms that provided, among other things, that upon default, the mortgagee is entitled: (a) to possession of the mortgaged property; and, (b) to recover its costs on a solicitor and client basis; i.e., on a substantial indemnity basis.
d. The mortgage entitled the Plaintiff to administrative fees upon default.
e. The mortgage maturity date was November 5, 2019, and the mortgage required payment of monthly installments of interest only calculated at the rate of 9 % per annum.
f. Default under the mortgage occurred on November 5, 2019, when Mr. Ammar failed to repay the mortgage.
g. Notices were sent to Mr. Ammar and demand was made for him to repay the mortgage secured loan.
h. The loan and the mortgage remain in default.
[4] On November 8, 2019, this action was commenced by Statement of Claim. The Statement of Claim was personally served on Mr. Ammar.
[5] Mr. Ammar defended the action and delivered a Statement of Defence.
[6] After the service of the Statement of Defence, Mr. Ammar withdrew his original Statement of Defence in anticipation of his lawyer delivering a fresh one. However, a fresh Statement of Defence has not been served to replace the original statement of defence.
[7] At various times, through his lawyers, Mr. Ammar has advised that he is arranging a refinancing, but that has not occurred.
[8] Throughout Mr. Ammar has remained in possession of the mortgaged property.
[9] Pursuant to rule 20.04, the court may grant summary judgment where it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[10] In the case at bar, the Plaintiff has filed evidence to establish liability and to quantify the mortgage indebtedness. Mr. Ammar has not filed any defence nor any evidence on the summary judgment motion. In the immediate case, there are no issues requiring a trial.
[11] The amount due and payable under the mortgage consists of principal, interest calculated and payable at the rate of 9% monthly, and fees as set out below:
Principal $5,500,000.00
Interest to November 24, 2020 $542,638.81
Fee - Late payment administration $395.50
Fee - Administrative collection $500.00
Fee – Mortgage Statement $508.50
TOTAL – November 16, 2020[^1] $6,044,042.81
[12] The Plaintiff’s standard charge terms of its mortgage provide for the recovery of the legal costs of enforcing the mortgage on a substantial indemnity basis. The Plaintiff is claiming $17,599.99 for costs on a substantial indemnity basis.
[13] Pursuant to rule 60.10 (1) of the Rules of Civil Procedure, a writ of possession may be issued with leave of the court, obtained on motion without notice or at the time an order entitling the party to possession is made.
[14] The plaintiff has not received notice from any person claiming an interest in the mortgaged property, nor any other person appearing to be in possession, nor from anyone in possession appearing to be under a disability.
[15] The Plaintiff therefore shall have an Order that the defendant, Jesse Ammar, deliver to the plaintiff possession of 5646 Major Mackenzie Drive East, Markham, Ontario, L3P 3J3. I grant leave to the Plaintiff to have a writ of possession issued.
[16] Further, I order and adjudge that the defendant Jesse Ammar shall pay to the Plaintiff $5,500,000 for principal, together with accrued interest of $542,638.81 as of November 24, 2020 and additional charges of $1,404.00 for the total sum of $6,044,042.81 plus costs of $17,599.99 on a substantial indemnity basis.
[17] The judgment shall bear interest at the rate of 9.0% per annum from November 24, 2020.
Perell, J.
Released: November 24, 2020
COURT FILE NO.: CV-19-00630773-0000
DATE: 2020/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
368230 ONTARIO LIMITED
Plaintiff
- and -
JESSE AMMAR
Defendant
REASONS FOR DECISION
PERELL J.
Released: November 24, 2020
[^1]: Per diem after November 16, 2020 is $1,489.73.