Superior Court of Justice - Ontario
COURT FILE NO.: CV-18-609244
RELEASED: 2021/08/04
RE: Donnele Munda and Jamalia McMorris v. Sandra Johnson, Lesa Smart AKA Lesa Hughes, Colin Dale Satchwell and Genesis Residential Care Facility Corp.
BEFORE: Master Graham
HEARD: July 7, 2021
COUNSEL: Jamalia McMorris, plaintiff in person Karandeep Lidder for the defendant (moving party)
REASONS FOR DECISION
(Motion to discharge a certificate of pending litigation)
[1] On November 20, 2018, the plaintiffs commenced an action to recover a loan to the defendants Sandra Johnson and Lesa Smart, secured by a charge on three properties in Hamilton, Ontario. The plaintiffs allege that the default on the loan occurred on September 1, 2017 at which time the amount owing, including outstanding principal, accrued interest, fees and costs was $301,997.27.
[2] On January 25, 2019, default judgment was signed against the defendant “Genesis Care Residential Facility”, with the judgment including possession of two of the Hamilton properties.
[3] On October 25, 2019, by order of Master Josefo, the name of the “Genesis Care” defendant was amended to “Genesis Residential Care Facility Corp.”. The amended statement of claim also alleged default on a Guaranty given by Colin Satchwell, the husband of Sandra Johnson, with respect to payment of the defaulted loan, and claimed a Certificate of Pending Litigation (“CPL”) on Johnson and Satchwell’s matrimonial home at 53 Chalkfarm Crescent in Brampton (“53 Chalkfarm”). The parcel register from the Brampton Land Registry Office indicates that 53 Chalkfarm was transferred from the previous owner to Mr. Satchwell on August 16, 2017, and he has been the sole registered owner since then.
[4] On November 27, 2019, by order of Master Jolley dated November 22, 2019, the statement of claim was again amended to name Colin Satchwell as a defendant.
[5] On November 28, 2019, Master Brott granted the plaintiffs an ex parte order issuing a certificate of pending litigation (“CPL”) on 53 Chalkfarm. The CPL was registered on title in Brampton on December 4, 2019. On January 6, 2020, Master Short signed default judgment against the defendants for $291,070.00 plus costs.
[6] The defendant Satchwell now moves to discharge the CPL. For these reasons, the motion is dismissed.
Statute and case law
[7] The authority for issuing and registering a CPL is contained in s. 103(1) of the Courts of Justice Act, R.S.O. 1990 c. C-43 (“CJA”), and the court’s jurisdiction to discharge a CPL is conferred by s. 103(6) of the CJA:
103(1) The commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a certificate of pending litigation is issued by the court and the certificate is registered in the proper land registry office under subsection (2). . . .
(6) The court may make an order discharging a certificate,
(a) where the party at whose instance it was issued,
(i) claims a sum of money in place of or as an alternative to the interest in the land claimed;
(ii) does not have a reasonable claim to the interest in the land claimed, or
(iii) does not prosecute the proceeding with reasonable diligence;
(b) where the interests of the party at whose instance it was issued can be adequately protected by another form of security; or
(c) on any other ground that is considered just,
and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just.
[8] The case law on the issue of when the court should exercise its discretion to grant or discharge an order issuing a CPL was well summarized by Master Glustein (as he then was) in Perruzza v. Spatone, 2010 ONSC 841, at para. 20:
20 I rely on the following legal principles:
(i) The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on a motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499 (S.C. – Mast.) (“Homebuilder”) at para. 1);
(ii) The threshold in respect of the “interest in land” issue in a motion respecting a CPL (as that factor is set out at section 103(6) of the Courts of Justice Act, R.S.O. 1990, c. C. 43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. – Comm. List) at para. 62);
(iii) The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has “a reasonable claim to the interest in the land claimed” (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 6832 (ON CA), 2002 CarswellOnt 219 (C.A.) at para. 20);
(iv) Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (S.C. – Mast.) at paras. 10-18); and
(v) The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 1414 (ON SC), 1977 CarswellOnt 1026 (Div. Ct.) at para. 9).
Evidence and submissions of the defendants
[9] Based on Perruzza, supra, the defendants submit that CJA s. 103(6) requires a party seeking to obtain or maintain a CPL to demonstrate a triable issue in respect of an interest in the subject land, i.e. 53 Chalkfarm Crescent in Brampton. The defendants also acknowledge (para. 13 of their factum) that they have the onus as the moving parties to establish that a discharge of the CPL is warranted.
[10] The defendants have delivered an affidavit of Mr. Satchwell sworn May 18, 2021 which includes the following evidence:
The original statement of claim alleges that the loan constituted a charge against three properties in Hamilton but does not mention 53 Chalkfarm. (para. 3) The version of the statement of claim amended on October 25, 2019 includes allegations that “the loan [to Ms. Johnson] and Guaranty [from Mr. Satchwell] constituted a charge on the Property [53 Chalkfarm] and to request that a Certificate of Pending Litigation be registered on title thereto on the grounds that the loan monies advanced were for the purpose of or otherwise used for a deposit on the Property. (para. 5) [emphasis added]
The amendments to the statement of claim on November 22, 2019 add Mr. Satchwell as a defendant. These amendments also delete allegations that the plaintiffs had bank drafts and a “Purchase of Sale Agreement” for the purchase, and that the plaintiffs had voice recordings of Sandra Johnson acknowledging her interest in 53 Chalkfarm and why title was not taken in her name. (para. 6)
Mr. Satchwell refers to the registration of the CPL on December 4, 2019 and the default judgment of January 6, 2020. (paras. 7 and 8) He observes that the court made no order with respect to 53 Chalkfarm, the Guaranty makes no reference to 53 Chalkfarm, and it was never his understanding that 53 Chalkfarm was collateral for his Guaranty. (para.9)
Mr. Satchwell expresses the opinion that the plaintiffs misled the court by not advising that 53 Chalkfarm “was not and has never been subject to a charge not served as collateral under the Guaranty.” He also states that he has been advised by his lawyers that the plaintiffs may be trying to avoid proper procedures for obtaining and enforcing judgment. (paras. 11 and 12) (I note that these are nothing more than statements of opinion and are of no assistance in resolving the issue of whether the CPL should be discharged.)
Mr. Satchwell deposes that the CPL has delayed his efforts to refinance 53 Chalkfarm, and there will be continued prejudice to him if the CPL is not discharged. (para. 13)
[11] Based on Mr. Satchwell’s evidence, the defendants submit that the CPL should be vacated because the plaintiffs are simply claiming a liquidated debt arising from the original loan and Mr. Satchwell’s subsequent Guaranty, which cannot result in a reasonable claim to an interest in 53 Chalkfarm. The loan was originally secured by the Hamilton properties and not by 53 Chalkfarm, and Mr. Satchwell’s Guaranty neither refers to 53 Chalkfarm nor provides it as collateral for the loan or Guaranty. The defendants also submit that there is no evidence, other than Ms. McMorris’s belief, that the funds that she advanced to Sandra Johnson were used to purchase 53 Chalkfarm. (As indicated below, Ms. McMorris deposes in her uncontradicted affidavit evidence that the defendants Johnson and Satchwell admitted to her that they used all of the funds loaned to purchase 53 Chalkfarm, so the submission that there is no evidence in this regard is incorrect.)
[12] The case law summarized in Perruzza includes the factors to be considered on a motion to discharge a CPL set out in 572383 Ontario Inc. v. Dhunna. The defendants submit that the relevant factors favour discharging the CPL, including that the property at 53 Chalkfarm is not unique, there was no intent to give the plaintiffs any security interest in that property when the defendants acquired it, and damages would be a suitable remedy and could be easily calculated given that default judgment has been rendered.
[13] The defendants also submit that the plaintiffs failed to make full and fair disclosure to the court when they sought the CPL on an ex parte basis. They base this submission on the statement of claim, which did not initially refer to the Chalkfarm property. Counsel submits that the plaintiffs have repeatedly come to court to tailor their case in an effort to “chase the CPL”, particularly after having obtained the first default judgment. (As set out below, counsel could not identify any specific failure by the plaintiffs to make full and fair disclosure at the ex parte motion at which the CPL was granted.)
[14] With respect to the issue of balance of convenience, counsel submits that the CPL is preventing the defendant Satchwell from trying to refinance his home. Also, the CPL is unnecessary because there are already default judgments in place and there are writs in place on the three Hamilton properties that were security for the original loan.
[15] The defendants also submit that the CPL should be discharged because the plaintiff has submitted that she is relying on it only to enforce her judgment. (Ms. McMorris’s submission that she requires the CPL to enforce her judgment is only one of her submissions.)
Evidence and submissions of the plaintiff
[16] Ms. McMorris relies on the evidence in various affidavits that she has filed in this action, including her affidavit of November 26, 2019 summarized below. The defendants have never cross-examined her on any of these affidavits.
[17] The November 26, 2019 affidavit was prepared subsequent to Master Jolley’s order of November 22, 2019, one of the terms of which was that “the Plaintiff’s Motion for a CPL is adjourned to prepare an affidavit confirming the funds the Defendants borrowed assisted with/or were used for the purchase of 53 Chalkfarm Crescent, in Brampton.” The November 26, 2019 affidavit would have been before Master Brott when she granted the CPL order on November 28, 2019.
[18] The evidence relevant to this motion in Ms. McMorris’s November 26, 2019 affidavit is:
After Ms. McMorris met the defendants in February 2017, they asked her to lend them money to purchase a property. (paras. 5 and 6)
On April 25, 2017, Ms. McMorris lent $50,000.00 to the defendants. (para. 7)
On May 4, 2017 the defendants Johnson and Satchwell entered into an agreement of purchase and sale to purchase 53 Chalkfarm Crescent in Brampton. (para. 8)
On June 15, 2017, Ms. McMorris lent $100,000.00 to the defendants. (para. 9)
The closing date for the purchase of 53 Chalkfarm was August 15, 2017. Ms. McMorris further deposes that “the defendants Colin Satchwell and Sandra Johnson admitted to me that they used all of my money to purchase their property as they were short to get a refinance for their business”. (para. 10)
Ms. McMorris again deposes that “100% all of the money [sic] lent to the Defendants went to purchase their matrimonial home, new property in Brampton, 53 Chalkfarm Crescent . . .” (para. 13)
The funds loaned by Ms. McMorris that the defendants used to purchase their home were never paid back. (para. 14)
On July 5, 2019, the defendant Satchwell signed as guarantor a promissory note and guarantee to pay the outstanding amount of $266,070.00 which was never paid. (para. 16)
Ms. McMorris “made this affidavit based on an order of Master Karen E. Jolley on November 22, 2019 and for continuation of my motion.” (para. 17)
[19] Ms. McMorris submits that her uncontradicted evidence that the defendants used the money that they borrowed from her to purchase 53 Chalkfarm, and never repaid the loans, justifies the CPL remaining on title.
[20] Ms. McMorris also relies on the fact that the defendants have never defended the action or denied any of the allegations that she has made against them. The defendants’ failure to defend the action is reflected in the judgment of Master Short dated January 6, 2020 which confirms the noting in default. The consequences of the noting in default are stated in Rule 19.02(1)(a):
19.02(1) A defendant who has been noted in default,
(a) is deemed to admit the truth of all allegations of fact made in the statement of claim;
[21] Based on rule 19.02(1)(a), it is necessary to review the allegations in the Amended Amended Statement of Claim. The relevant allegations, which the defendants are deemed to admit, are:
All of the funds loaned by the plaintiffs to the defendants Johnson and Satchwell “went into the hands of Sandra Johnson and Lesa Smart (aka) Lesa Hughes and her husband benefitted from the monies for a deposit on their family home.” (para. 10)
“All or some of the monies went to buy Sandra Johnsons [sic] new house which was purchased on May 4, 2017. The plaintiffs lent them these monies on April 25, 2017.” (para. 11)
“The Defendants [sic] husband Colin Satchwell signed an agreement with the plaintiffs and is Sandra Johnson and Lesa Smarts [sic] GUARANTOR. He promised to pay plaintiffs [sic] my money back but has not made good on his promise or agreement. He defaulted on payment.” (para. 12)
“Colin Satchwell and Sandra Johnson live in their matrimonial home at 53 Chalkfarm Cres. in Brampton.” (para. 13)
“Sandra Johnson’s name is not on their home, because she is trying to evade her creditors. Her name is on the Purchase of Sale” [i.e. the Agreement of Purchase and Sale]. (para. 14)
“Sandra Johnson is the True owner of 53 Chalkfarm Crescent in Brampton.” (para. 15)
“The husband Colin Satchwell, has accepted responsibility of his wife’s Debt. And waived his rights.” (para. 19)
“Mr. Colin Satchwell and Defendants Sandra Johnson and Lesa Smart failed to pay agreed amount, the husband defaulted on his promise of re-payment of the loan to the plaintiffs on August 5, 2019.” (para. 20)
[22] Ms. McMorris relies on the fact that both Mr. Satchwell and Ms. Johnson were originally named as purchasers in the agreement of purchase and sale for 53 Chalkfarm, but only Mr. Satchwell took title. Ms. McMorris submits that the removal of Ms. Johnson from the agreement of purchase and sale before closing was a fraudulent conveyance to defeat the claims of creditors including herself. She submits that Master Brott granted the CPL because the defendants Satchwell and Johnson had “switched up” the title to their home “for the purpose of a fraudulent conveyance.”
Analysis and decision
[23] Based on the summary of the law with respect to the granting and discharging of CPLs contained in Perruzza v. Spatone, supra, the issue on this motion is whether there is a triable issue as to the interest claimed by the plaintiffs in 53 Chalkfarm Crescent, Brampton. If there is a triable issue in that regard, then the plaintiffs’ CPL may remain on title; if there is not then the CPL should be vacated.
[24] There is little dispute as to the relevant facts. In her November 26, 2019 affidavit, Ms. McMorris specifically deposes, and the defendants have never denied, that:
Ms. McMorris loaned the defendants $50,000.00 before they entered into the agreement of purchase and sale for 53 Chalkfarm;
she loaned them another $100,000.00 before the purchase closed;
the defendants Satchwell and Johnson admitted that they used all of the funds loaned by Ms. McMorris to purchase 53 Chalkfarm;
the defendants never repaid the loan and Mr. Satchwell defaulted on his Guaranty.
[25] As a consequence of the failure of the defendants Johnson and Satchwell to defend the action, and their ensuing noting in default, they are deemed to admit that the funds that were loaned to Sandra Johnson and Lesa Smart/Hughes on April 25, 2017, the repayment of which was guaranteed by Satchwell, were used to purchase the matrimonial home occupied by Johnson and Satchwell at 53 Chalkfarm Crescent in Brampton. The defendants are also deemed to admit that the loan was not repaid and Mr. Satchwell defaulted on his Guaranty.
[26] It is undisputed that 53 Chalkfarm is the matrimonial home of the defendants Johnson and Satchwell. Therefore, even if Ms. Johnson is not a registered owner, she has an interest in the property, which, on Ms. McMorris’s evidence and the defendants’ deemed admissions, was acquired using the funds that Ms. McMorris loaned to Ms. Johnson. The fact that Mr. Satchwell’s Guaranty of the loan to his wife Sandra Johnson does not refer to 53 Chalkfarm is irrelevant. As registered owner of the property and as co-owner of their matrimonial home, he benefited from the loan used to purchase it, and was clearly aware of the loan, given his subsequent personal Guaranty to repay it.
[27] The crucial question is whether the fact that the funds loaned by Ms. McMorris to the defendants to purchase 53 Chalkfarm is sufficient to give Ms. McMorris a reasonable claim to an interest in 53 Chalkfarm.
[28] Ms. McMorris’s pleading in the statement of claim, which is consistent with her evidence, is that the funds that she loaned to Ms. Johnson were used to purchase the defendants’ matrimonial home at 53 Chalkfarm Crescent in Brampton. The defendants themselves understand the amended statement of claim to allege that “the loan and Guaranty constituted a charge on the Property and to request that a Certificate of Pending Litigation be registered on title thereto on the grounds that the loan monies advanced were for the purpose of or otherwise used for a deposit on the Property at the time I purchased it.” (Satchwell affidavit, para. 5; see also para. [10] above)
[29] Another possible reading of the statement of claim is that the interest claimed by Ms. McMorris in 53 Chalkfarm is based on a constructive trust arising from the defendants’ use of her funds to purchase the property. However, regardless of whether the interest claimed by Ms. McMorris is characterized as a charge or a constructive trust, in the face of her uncontradicted evidence and the defendants’ deemed admissions that they used all of her loan as a deposit for the purchase of 53 Chalkfarm, she has established a reasonable claim to an interest in the property sufficient to defeat the motion to discharge the CPL.
[30] The defendants submit that based on the factors in 572383 Ontario Inc. v. Dhunna, supra (see para. 20(iv) of Perruzza v. Spatone, supra) the CPL should be discharged. The court should consider the Dhunna factors in the context of the statement in para. (v) of Perruzza: “The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated.” [emphasis added]
[31] My review of the enumerated factors in Dhunna is:
(i) The plaintiff is not a shell corporation;
(ii) The land is not unique;
(iii) Ms. McMorris and the defendants did not acquire 53 Chalkfarm together so they had no collective intent when it was purchased. However, notwithstanding the charges given on the Hamilton properties, the defendants clearly intended to use and did use all the funds loaned by Ms. McMorris for the purchase;
(iv) Ms. McMorris does claim damages in respect of the loan;
(v) Damages could be easily calculated based on the terms of the loan to Ms. Johnson and Mr. Satchwell’s Guaranty;
(vi) Damages would be a satisfactory remedy because Ms. McMorris’s interest is in recovering her loan rather than in the property itself;
(vii) There is no evidence that there is any prospective purchaser for the property;
(viii) The potential harm alleged by the defendants if the CPL is not removed is based on Mr. Satchwell’s broad statement in his affidavit (para. 13) that “The CPL has caused delay in my efforts to refinance the Property. There will be continued prejudice to myself if the requested relief is not granted.” However, there is no concrete evidence of what efforts Mr. Satchwell has made to refinance the Property, nor is there any evidence that refinancing the property would enable the defendants to pay the plaintiff’s judgment. The potential harm to the plaintiff if the CPL is removed is that the defendants may sell the property, thus preventing her from recovering the funds that they used to acquire it.
[32] The Dhunna factors that would favour the defendants, i.e. that the property in question is not unique and that damages have been claimed, are easily ascertainable and would be a satisfactory remedy, are outweighed by other “relevant matters between the parties”, being the defendants’ failure to defend the action, and by their deemed admission that they used the funds borrowed from Ms. McMorris to purchase the property. The defendants have never moved to set aside the default judgment, and even on this motion to discharge the CPL have provided no evidence that might challenge that judgment. The defendants are essentially saying “we borrowed money from Ms. McMorris, used it to buy our house, defaulted on the loan, then defaulted on the Guaranty given by Mr. Satchwell to repay the loan, and never defended the action, but we should still be able to deal with our property as we see fit.” Considering all relevant matters and in particular the defendants’ conduct, the motion to set aside the CPL is hereby dismissed.
[33] The defendants relied on another decision of Master Glustein, Mohammed v. Karigar, 2006 24340 (ON SC) to argue that a CPL is not justified where the plaintiff’s claim is only for monetary damages arising from an unpaid loan used by the defendants to purchase and maintain a property.
[34] In Mohammed, in exercising his discretion to discharge the CPL, Master Glustein noted that the evidence was uncontested that the defendant could not continue to make her mortgage payments so allowing the CPL to remain in place would only increase her debt, potentially leading to a forced sale of the property to the detriment of both the defendant and the plaintiffs. There was evidence of a prospective purchaser who would purchase the property only if the CPL were removed so allowing the CPL to remain in place would be more harmful to the defendant. Master Glustein also noted that the plaintiff lenders did not assert any claim for any interest in the property.
[35] In the case before me, the defendants acknowledge that the plaintiffs allege that “the loan and Guaranty constituted a charge on the Property” and thus claim an interest in the property. Also, there is no evidence of any prospective purchaser of the property who requires that the CPL be discharged before being willing to complete a purchase. Finally, the defendants in Mohammed defended the action, unlike the defendants Johnson and Satchwell who allowed Ms. McMorris to obtain a default judgment. The decision in Mohammed is therefore distinguishable.
[36] Although the defendants’ motion is dismissed based on my conclusion that the plaintiffs have demonstrated a triable issue with respect to the interest claimed in 53 Chalkfarm, and my consideration of all relevant matters between the parties, there were other arguments made on the motion that should be addressed.
[37] The defendants submitted that the plaintiffs failed to make full and fair disclosure on their ex parte motion for the CPL, and I accept their submission that a failure to disclose material facts on an ex parte motion would be a sufficient basis to discharge the CPL. However, at the hearing, I repeatedly asked defendants’ counsel to show me where in the material that was before Master Brott on the CPL motion the plaintiffs failed to make full and fair disclosure, and counsel was unable to do so. He relied on the plaintiffs’ amendments to the statement of claim, first to claim the CPL and then to add Colin Satchwell as a defendant. However, pleadings amendments are not evidence and cannot constitute a lack of full and fair disclosure.
[38] The defendants also rely on paragraph 11 of Mr. Satchwell’s affidavit in which he states “I believe the Plaintiffs have misled the court by not advising that the Property was not and has never been subject to a charge nor served as collateral under the Guaranty.” First, Mr. Satchwell’s expression of his belief is not evidence. Second, the interest in land claimed by Ms. McMorris arises from the original loans being used to purchase the defendants’ matrimonial home at 53 Chalkfarm, and neither the pleading in the amended statement of claim with respect to Mr. Satchwell’s guaranty, nor Ms. McMorris’s affidavits, allege that Mr. Satchwell’s Guaranty created any security interest in 53 Chalkfarm. There was no obligation on the part of Ms. McMorris to specifically highlight the absence of any such security interest and any failure to do so would not constitute any breach of her duty of full and fair disclosure on an ex parte motion.
[39] Ms. McMorris submitted that the removal of Sandra Johnson from the agreement of purchase and sale for 53 Chalkfarm, such that title to the property was only taken by Mr. Satchwell, constituted a fraudulent conveyance to defeat recovery of her loan, and would therefore justify maintaining the CPL on the property. However, when the defendants were purchasing 53 Chalkfarm, even as a matrimonial home, they were not both obliged to be registered as owners. Their decision that title to the property be registered only to Mr. Satchwell was not a “conveyance” of the property by them and cannot therefore be considered a “fraudulent conveyance” to defeat the claims of creditors.
[40] In oral argument, Ms. McMorris relied on a voice recording of Ms. Johnson acknowledging that she had purchased the property in her husband’s name. This recording is not before the court and cannot be considered. However, this recording would not affect the outcome of the motion, given that it is clearly established that 53 Chalkfarm was purchased by the defendants Johnson and Satchwell as a matrimonial home. The defendants’ submission that the plaintiffs withdrew their initial pleading regarding this recording when they amended the statement of claim is also irrelevant to the motion, both because the evidence for which the plaintiff relied on the recording is otherwise established and because the pleading was one of evidence that was appropriately withdrawn.
[41] Ms. McMorris submitted that the three Hamilton properties which were security for the original loan have been sold pursuant to powers of sale. She submits that there are numerous judgments against the defendants and that they have defrauded other people. However, the fact that there are other judgments against the defendants is not relevant to the issue on this motion, which is whether there is a triable issue as to the interest claimed by the plaintiff in 53 Chalkfarm.
[42] As indicated above, for these reasons, the defendants’ motion is dismissed.
Costs
[43] If the parties cannot agree on the disposition of the costs of the motion, they may make written submissions, not exceeding three pages each, the plaintiff within 20 days and the defendants within 40 days. Ms. McMorris should be aware that, in order to recover costs as a self-represented party, she must have incurred out-of-pocket expenses and/or demonstrate that she lost income or the opportunity to earn income as a result of having to respond to the motion.
MASTER GRAHAM
August 4, 2021