Court File and Parties

OSHAWA COURT FILE NO.: CV-23-00000781 DATE: 20240530 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NEW HAVEN MORTGAGE CORPORATION, Plaintiff AND: JOSE ALFRED CATARINO and RAQUEL PILAR CATARINO, Defendants

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Matthew Wise, Counsel for the Plaintiff Jose Alfred Catarino and Raquel Pilar Catarino, Self-Represented

HEARD: May 27, 2024

Endorsement

[1] The Plaintiff, New Haven Mortgage Corporation, brings this motion for:

(a) an order noting the Defendants in default and granting the Plaintiff default judgment against the Defendants;

(b) in the alternative, summary judgment against the Defendants on the claims contained in the Statement of Claim; and

(c) an order granting the Plaintiff leave to issue a writ of possession in respect of the property municipally known as C520 Durham Road 12, Cannington, Ontario L0E 1E0 (the “Property”).

[2] This action concerns a mortgage that has been in default for sixteen months.

Facts

[3] On January 5, 2022, the Plaintiff loaned the Defendants the sum of $900,000 at an interest rate of 8.99% per annum secured as a mortgage (the “Mortgage”) registered against title to the Defendants’ property municipally known as C520 Durham Road 12, Cannington, Ontario (the “Property”).

[4] The Defendants are the sole residents at the Property and continue to reside at the Property.

[5] The Plaintiff commenced this action on April 25, 2023 and obtained default judgment against the Defendants on July 27, 2023.

[6] Pursuant to the default judgment, the Plaintiff brought a motion on December 7, 2023, seeking leave to obtain a writ of possession. The Defendants conversely brought a cross-motion to set aside the noting in default and the default judgment and also sought leave to serve and file their statement of defence, which was attached to their motion record.

[7] These motions were originally returnable on December 21, 2023, but were adjourned for procedural reasons that are not germane to this motion.

[8] The motion was heard on April 18, 2024. RSJ Edwards set aside the default judgment and the noting of the Defendants in default. The Defendants were ordered to serve and file their Statement of Defence and any counterclaim, cross claim or third party claim by May 5, 2024. RSJ Edwards also ordered that “the motion for summary judgment disposing of all the issues in the within Action is hereby scheduled to be heard on May 27, 2024.”

[9] Notwithstanding this Order, the Defendants have not served a Statement of Defence, or served any material in response to the motion for summary judgment.

Analysis

[10] Given the Defendants’ failure to file a Statement of Defence in accordance with the April 18, 2024 Order of RSJ Edwards, the Plaintiff is entitled to Default judgment.

[11] In the alternative, given the Defendants’ failure to file any response to the motion for summary judgment, the Plaintiff is entitled to summary judgment in accordance with Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. There is no genuine issue requiring a trial.

[12] Indeed, in their submissions on the motion, the Defendants did not dispute that they received funds from the Plaintiff, or that the mortgage was registered on title of the Property to secure the loan, or that the mortgage is in default. The Defendants asked for more time to refinance the property.

[13] The mortgage has been in default for 16 months. The Defendants have been on notice that the Plaintiff was seeking possession of the mortgaged property for more than one year. There is no basis in law to further delay this proceeding or judgment.

[14] I am also satisfied that the Plaintiff meets the requirements of Rule 60.10 of the Rules of Civil Procedure, and is entitled to a writ of possession for the Property. The Mortgage is in default. The Defendants are the sole owners of the Property and the only mortgagors under the Mortgage.

[15] Notice of this proceeding was duly given. All persons in actual possession of any part of the land have received sufficient notice of this proceeding to have enabled them to apply to the Court for relief. Therefore, the Plaintiff has complied with Rule 60.10 and leave to issue a writ of possession is granted.

Order

[16] This Court Orders:

a. The Plaintiff’s motion for default judgment/summary judgment is granted.

b. The Defendants deliver to the Plaintiff possession of the property municipally known as C520 Durham Road 12, Cannington, Ontario, L0E 1E0, more fully described as Property Identifier Number: 72011 - 0049 (LT) PT W ½ & E ½ LT 6 CON 11 BROCK AS IN D296299; BROCK.

c. The Plaintiff is granted leave to issue a Writ of Possession for the Property.

[17] The Plaintiff did not seek costs, and none are awarded.

Justice R.E. Charney Date: May 30, 2024