



COURT OF APPEAL FOR ONTARIO

CITATION: Patel v. Borges, 2017 ONCA 761

DATE: 20171002

DOCKET: C61389

Hourigan, Brown and Roberts JJ.A

BETWEEN

Jayendra Patel

Plaintiff

(Appellant)

and

Anna Borges

Defendant

(Respondent)

Lana Menon and Darrell Paul, for the appellant

Rolf Piehler, for the respondent

Heard and released orally: September 28, 2017

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated October 28, 2015.

REASONS FOR DECISION

[1]

The appellant brought an action to enforce a mortgage registered against
    a residential property solely owned by the respondent.

[2]

The respondents spouse, who had been borrowing large sums of money from
    the appellant, signed a promissory note agreeing to register a mortgage against
    the property in the appellants favour as security for the loans. However, the
    respondent testified that she understood that the mortgage was to replace an
    existing second mortgage and not as a third mortgage to secure her husbands
    debts. She submitted that the mortgage was unenforceable as she received no
    consideration.

[3]

The trial judge dismissed the appellants action, finding that the
    respondent received no consideration for the mortgage and that the purpose of
    the mortgage was to pay off the existing second mortgage and not to secure the
    loans made to the respondents spouse.

[4]

The appellant submits that the trial judge erred in finding that the
    respondent received no consideration for the mortgage and that the purpose of
    the mortgage was to pay off the existing second mortgage.

[5]

We do not accept this submission. The trial judge conducted a thorough
    review of the evidence and his findings were open to him on the record. For
    example, the mortgage commitment stated that the security sought was a second
    mortgage. Further, the respondent signed an acknowledgment and a solemn
    declaration, both of which indicated that the mortgage was a second mortgage.

[6]

We also reject the appellants argument that the trial judge erred in
    accepting the respondents evidence that she believed that the purpose of the
    mortgage was to replace an existing second mortgage because the new mortgage
    was only in the amount of $165,000 and the existing second mortgage had a
    balance of $203,000. The trial judge specifically considered this issue in his
    reasons at para. 62. He accepted the respondents evidence that she believed
    that the amount advanced would be sufficient to discharge the existing second
    mortgage once certain unreasonable charges in the discharge statement were
    resolved and removed. This was a finding that was open to the trial judge.

[7]

The appellant also submits that the trial judge erred in finding that
    the respondent was not served with the notice of sale. We are not satisfied
    that the trial judge erred in so finding. In any event, nothing turns on the
    issue as the mortgage is invalid and any enforcement actions taken pursuant to
    it are of no force. Even if she received the notice of sale, the statement of claim
    was issued approximately one month later. The failure to take steps in that
    short period does not constitute acquiescence.

[8]

The appeal is dismissed. The appellant shall pay costs of the appeal to
    the respondent in the amount agreed upon of $5,000, inclusive of fees,
    disbursements, and taxes.

C.W.
    Hourigan J.A.

David
    Brown J.A.

L.B.
    Roberts J.A.


