



COURT OF APPEAL FOR ONTARIO

CITATION: Reichert v. Stanbarr Services
    Limited, 2013 ONCA 602

DATE: 20131002

DOCKET: C57013

Gillese, Juriansz and Strathy JJ.A.

BETWEEN

Hans Jorg Reichert and Marianne Reichert

Defendants (Appellants)

and

Stanbarr Services Limited, Kempston Grove Corp.,
    617695 Ontario Inc. and Eddy Goldberg

Plaintiffs (Respondents)

Hans Jorg Reichert and Marianne Reichert, appellants
    appearing in person

Martin Greenglass, for the respondents

Heard: September 27, 2013

On appeal from the judgment of Justice Thomas A. Bielby
    of the Superior Court of Justice, dated April 18, 2013.

ENDORSEMENT

[1]

The second mortgagee in this mortgage action brought a motion for
    summary judgment, in which it sought possession of the mortgaged premises
    municipally described as 13610 11
th
Concession, Schomberg, Ontario
    L0G 1To (the Property).

[2]

The defendants were self-represented both at the motion below and before
    this court.  They acknowledged that the mortgage was valid and that they were
    in default.  However, they denied that they owned the Property, maintaining
    that since 2001 the Property has been owned by the Jorg Trust.

[3]

By order dated April 18, 2013 (the Order), Bielby J. granted the
    motion for summary judgment and, among other things, ordered that possession of
    the Property go to the second mortgagee.  In concluding that the second
    mortgagee was entitled to possession, the motion judge found that:

1.

the mortgage
    sued on was valid, and had matured and become due in February of 2012;

2.

the mortgage
    sued on was in default;

3.

the defendants
    and their children were not then residing in the Property;

4.

the evidence
    filed by the defendants did not meet the burden of proof in demonstrating that
    a trust owned the Property; and,

5.

the thrust of
    the defendants argument was to delay the matter.

THE ISSUES

[4]

On appeal, the defendants ask that the Order for possession be set
    aside.  Their arguments can be summarized into essentially two submissions.

[5]

First, the defendants contend that the motion judge failed to recognize
    that the Jorg Trust is the true owner of the Property.

[6]

Second, the defendants submit that the motion judge failed to appreciate
    their concerns that the second mortgagee was not acting in good faith, and that
    it would sell the Property for too low a price or not to the right person. 
    They ask this court to order that they be present for all inspections done by
    prospective purchasers and that they be permitted to pre-screen prospective purchasers
    for their suitability to buy the Property.

[7]

At the oral hearing of the appeal, the defendants brought with them a
    conditional offer for the purchase and sale of the Property (the Offer). 
    They made a further request, namely, that no matter how the appeal is decided,
    that the Offer be declared to be valid and that they are entitled to proceed
    with in accordance with it.

ANALYSIS

The Jorg Trust Submission

[8]

We see no basis for interfering with the motion judges determination
    that the evidence before him was insufficient to establish that the Property
    was owned by the Jorg Trust.

[9]

However, for the purposes of this appeal, the panel will assume that the
    Jorg Trust is the beneficial owner of the Property.  This makes no change to
    the second mortgagees right to possession of the Property.  The defendants
    (appellants) claim to represent the Jorg Trust and they have acknowledged that
    the mortgage is in default and that they are not residing in the Property.

The Defendants Concerns about
    the Actions of the Second Mortgagee and the Sale of the Property

[10]

Concerns
    over a possible improvident sale are not a legal defence to a claim for
    possession where there is an admitted mortgage default.

[11]

Further,
    there is no legal basis on which to make the orders sought in relation to
    prospective purchasers.

[12]

Finally,
    we cannot accede to the defendants request in respect of the Offer as that
    matter is not properly before us.  We would note, however, that it is in
    everyones interest that a sale be concluded as soon as possible and that the
    sale price be a fair one.

DISPOSITION

[13]

Accordingly,
    the appeal is dismissed.

[14]

The
    panel dealt with costs of the appeal and costs of motion M42788 in the
    associated proceeding,
The Jorg Trust v. Stanbarr Services Limited et al
.,
    after concluding the hearing on both.  In relation to the appeal, costs are
    ordered in favour of the respondent, fixed at $9,230.85, all inclusive.  In
    relation to the motion, costs are ordered in favour of the moving party, fixed
    at $3,516.48, all inclusive.

E.E. Gillese J.A.

R.G.
    Juriansz J.A.

G.R.
    Strathy J.A.


