QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 429 Date: 2008 10 24 Docket: Q.B. 32 of 2008 Judicial Centre: SWIFT CURRENT BETWEEN: MENDHAM-BURSTALL CREDIT UNION and DEREK JOHN MOORE AND SHERI LYNN MOORE Counsel: Karl P. Bazin, Q.C. for the plaintiff No one appearing for the defendants FIAT GUNN J. October 24, 2008 [1] The plaintiff seeks an order confirming the order nisi for judicial sale. HISTORY OF THE PROCEEDINGS [2] The defendants entered into mortgage with the plaintiff on April 14, 2005 for land described as: Lot 4, Block 17, Plan No. 85SC07177, Extension 0, Burstall, SK. The mortgage was renewed for year period with maturity date of March 14, 2008. [3] On February 20, 2008, notice of intention to apply for an appointment to hear an application for leave to commence an action under The Land Contracts (Actions) Act, R.S.S. 1978 c. L-3, (“the Act”) was served on the Provincial Mediation Board. [4] On March 20, 2008, the plaintiff applied ex parte for an appointment for hearing of an application pursuant to the Act for leave to commence an action. This was not in compliance with s. 3(2) of the Act which prescribes that an application may be brought after the expiration of 30 clear days from the date of service on the Provincial Mediation Board. [5] The affidavit of Randy Schneider, the manager of the Mendham-Burstall Credit Union, was filed in support of the application. The form of the affidavit was not in compliance with Rule 318 and 319 of the Queen’s Bench Rules of Court. The only evidence of the value of the property at this stage is contained in paragraph 10 of the above noted affidavit, sworn on March 25, 2008 in part as follows: That the land.... is in my opinion of the value of $30,000.00 to $45,000.00 and no more. The Credit Union understands that it is listed at $70,000.00, but the Credit Union’s position is that this is overvalued, and would likely sell in the $30,000.00 to $45,000.00 range, based on the Credit Union’s knowledge of property being sold in the area. [6] An appointment for leave to commence action was granted and the hearing was set for April 21, 2008. The appointment was served on both defendants on April 3, 2008. The defendants did not appear on April 21, 2008 and leave was granted for the plaintiff to commence action. statement of claim was issued April 23, 2008 and served on the defendants on May 7, 2008. The statement of claim has not been noted for default. [7] An application was made for an order nisi for sale of the land June 16, 2008. An affidavit of default (“for order nisi for foreclosure”) was sworn by Randy Schneider on June 10, 2008. Again this was not in compliance with Rule 318 and 319. The evidence of value contained in this affidavit is set out in paragraph in part as follows: ...the land.... is in my opinion of the value of $30,000.00 to $45,000.00 and no more. This opinion is based [sic] discussions with the real estate company, Royal LePage Community Realty of Maple Creek, Saskatchewan. [8] The amount owing under the mortgage was described as being the arrears of principal of $29,994.98 and arrears of interest at $995.03 or total of $30,990.01. [9] The order nisi for sale was granted on June 16, 2008, but it incorrectly described the amount owing as being $33,120.01. [10] The following paragraphs of the order nisi for sale have relevance: ....in default of payment into Court....the mortgaged land shall be sold under the direction of the law office of MacBean Tessem, through licensed real estate broker, who shall offer the said land for sale under listing agreement on the terms and conditions hereinafter provided. ... (a) the property will be listed for sale for six months. The listing price shall be $45,000.00, provided that the listing price may, in the Plaintiff’s discretion, be reduced by $2,500.00 for each month that the mortgaged land does not sell, but the listing price shall not be reduced to less than $30,000.00; ... (g) the Plaintiff and the Defendant(s) are given leave to submit offers to purchase. [sic] in the event that the offeror is the Plaintiff, the deposit and the balance of the purchase price need not be paid into Court; [11] By motion returnable October 14, 2008, the Plaintiff seeks an order confirming the sale of the land to the plaintiff for $35,000.00. The evidence filed in support of the application includes an affidavit of Randy Schneider, sworn September 30, 2008. In his affidavit, Mr. Schneider deposes, at paragraph 3, that “the plaintiff will offer to purchase the mortgaged property for the sum of $35,000.00.” DISCUSSION: [12] There are variety of procedural issues with the application as outlined in the background. The ex parte application for the appointment for hearing for the application by the proposed plaintiff for leave to commence action was premature as 30 clear days had not expired after service on the Provincial Mediation Board prior to the making of the application. The statement of claim was not noted for default prior to the application being made for the order nisi for sale. The amount shown to be owing by the defendants on the order nisi for sale was incorrect as the amount includes items in addition to the principal outstanding and the interest arrears. The order nisi for sale directs that the property be listed for six months. That would require the property to be listed until December 16, 2008. There does not appear on the evidence to be sale to be confirmed. The plaintiff is prepared to make an offer, but does not appear to have done so. [13] There is limited evidence with respect to the value of the property and no evidence from the licensed realtor who was charged with the responsibility of listing the property as to the steps taken. The draft bill of costs submitted by counsel contains numerous items which occurred prior to the granting of leave and there is no order from the court authorizing pre-leave costs, nor any evidence as to why the court might consider pre-leave costs. [14] Counsel invites the court to apply Rule 5(1) with respect to the irregularities identified. am prepared to do so with some limitations. I will not set aside the order nisi for judicial sale on the basis that the application for leave was premature or that the statement of claim was not noted for default. [15] However, the application for confirmation of the sale is premature as the property is to be listed for six months, and on the basis that there is no sale to be confirmed based on the evidence filed. On renewed application for confirmation of judicial sale, it would be preferable to have evidence directly from the listing agent setting out the steps taken to market the property and detailing for the court any offers received. There will be no costs awarded for this unsuccessful application.
FIAT: The plaintiff seeks an order confirming the order nisi for judicial sale. HELD: Application dismissed. The Court will not set aside the order nisi for judicial sale on the basis that the application for leave was premature or that the statement of claim was not noted for default. However, the application for confirmation of the sale is premature as the property is to be listed for 6 months. There does not appear on the evidence to be a sale to be confirmed. The plaintiff is prepared to make an offer, but does not appear to have done so. The draft bill of costs submitted contains numerous items which occurred prior to the granting of leave and there is no order from the Court authorizing pre-leave costs, nor any evidence as to why the Court might consider pre-leave costs. On a renewed application for confirmation of judicial sale, it would be preferable to have evidence directly from the listing agent setting out the steps taken to market the property and detailing for the Court any offers received. There will be no costs awarded for this unsuccessful application.