CIBC MORTGAGES INC v TUBRETT, 2020 ABQB 232
4.34: Stay of proceedings on transfer or transmission of interest
9.33: Sale to plaintiff
The Plaintiff in a foreclosure Action brought an Application for repossession of mortgaged property, and Judgment for the unsecured balance owing under the mortgage, pursuant to Rule 9.33. Noting that the Application was in the way of final relief, the Court applied the evidentiary standards of summary disposition.
Master Schlosser identified several factual uncertainties which could not be resolved summarily. Significantly, the lone appraisal report was unreliable on its face and the calculation of arrears was the subject of conflicting evidence, so the Court could not ascertain the shortfall in fair value relative to the amount outstanding on the mortgage. Moreover, an ambiguous reference to bankruptcy proceeds left the Court with doubt as to the potential operation of a stay, pursuant to Rule 4.34, barring the unsecured claim for a deficiency Judgment. The Application was dismissed, with a direction that the matter be resolved either through further evidence, or Trial.View CanLII Details