This is an informative brochure to review if you decide to have Estate documents prepared for you. If you reference this brochure, you will get 20% off our regular price for the preparation of a Will. Please email if we can be of assistance to you in preparing your Will and other estate documents.
Posts by Denise Hendrix:
Before you attend at your lawyer’s office, to sign your purchase and mortgage documents, this is a great read to familiarize yourself with the documents you will sign and the wording of those documents.
Hendrix Law is proud to welcome you to the annual Autism Colouring Contest. Our goal is to raise awareness for Autism by asking you to spend 20 minutes to colour.
Today, 1 in 57 children are diagnosed with Autism & it is the fastest growing disease in the world.
You can help get the word out by sharing & getting your friends, family, colleagues, and community colouring!
So let’s colour, upload your completed picture to your Facebook page and remember to use the hash tag #AUTISMCONTESTYYC to enter. Do not forget to share!!! We are excited to see your creativity.
FOLLOW THE CONTEST PAGE Autism Colouring Contest YYC or visit our new website for more information! https://lnkd.in/gex_h2W
Here is what you can do to help raise awareness!
– Facebook – Like Our Page and Share
– Post and Share your artwork all over Social Media!
– Share the contest with your friends, family, business colleagues
– Place copies of the colouring contest in your offices, schools, community centre for clients to colour
– attend your local Autism Awareness day
– take just a moment to think about ways you can show acceptance, love and inspiration with or towards someone who is autistic
GIVING BACK – If you would like to donate all Funds go to Austism Calgary
It’s an unfortunate reality that legal disputes can be costly to resolve, and lawyers fees can be significant. Not every case can justify hiring a lawyer. Alberta’s Provincial Court Civil can be an excellent option for cases that do not involve large sums of money or complex issues.
Once know as “small claims court”, the current Provincial Court Civil has been updated and overhauled to become easier to navigate without a lawyer, to handle a variety of cases, and to reach resolution more quickly.
Here are some of the features of Provincial Court Civil that aren’t well known:
Higher limit: Provincial Court Civil can take cases of up $50,000.
Easy to use forms: The Provincial Court Civil website ( https://albertacourts.ca/pc/areas-of-law/civil/forms ) has forms for various legal documents that can be completed online. The form for a Civil Claim – the document that starts a lawsuit – allows the user to pick from common types of lawsuits, such as car accident, amount owing for providing services, a debt claim, wrongful dismissal, return of a damage deposit, among others – and the form will then prompt for the required information for that type of lawsuit. The form has been well designed and makes it easy to create a legally correct document.
Options for resolution: after a lawsuit is started in Provincial Court, it is reviewed by court staff who determine if the case seems right for an alternative method of resolving the dispute. Provincial Court offers mediations with trained mediators who can help resolve some contested disputes. For straightforward claims, such as loans, or car accidents with only property damage, the court can direct a simplified trial.
In a simplified trial, the parties file a statement of their version of events in advance along with supporting documents, and then hold a streamlined trial for the judge to ask any questions. These trials are much shorter than a regular trial so there is much less waiting for a court date. The Provincial Court also has a process for Binding Judicial Dispute Resolution.
This process – which the parties have to agree to use – allows the parties to meet with a judge to attempt to settle their dispute, but if they cannot agree, the judge will make a decision. If the judge decides the case, there is no appeal, which provides powerful motivation for all parties to assist.
Despite these improvements, there are still some types of cases that the Provincial Court cannot handle. These include builders’ liens, foreclosure, defamation, and some other exceptions.
Hendrix Law lawyers are happy to discuss your case with you to evaluate whether handling your own case in Provincial Court Civil is a good fit.
In an unusual trial decision a decade in the making, the court has denied a bank – and ultimately, its default insurer – recovery against a fraudulent straw buyer, on the basis that the bank had participated in the fraud.
TD Bank v. Whitford (2020 ABQB 802) was the decision after a trial wherein the bank sought judgment for the shortfall after the sale of a property. The mortgage loan was made in 2007, went into default in 2009, and was sold in 2012. By the time the case finally went to trial in 2020, the bank’s deficiency had grown to over half a million dollars with accrued interest.
The borrower, Whitford, testified that an acquaintance, Farhat, convinced him to participate in a scheme whereby Whitford would purchase obtain and mortgage and purchase a property and would have the mortgage in his name for one year, after which time the property would be purchased from him.
Whitford was 25 years old at the time, and was told having the mortgage would improve his credit score. He also received $5,000 for signing. He then met with a real estate agent, provided some financial information and signed some documents, but at trial said that the documents he provided had been altered after he submitted them.
The real estate agent then used Whitford’s documents as well as falsified documents, including false income tax and bank account documents, to apply for a mortgage. Contrary to the bank’s policies, a bank employee, who was the real estate agent’s friend and sister-in-law, processed the mortgage application based on the information provided by the real estate agent, without meeting with Whitford directly.
An investigation by the bank found that the bank employee had been involved in nine mortgage files with fraudulent documents, all referred by the same real estate agent.
Further enabling the fraud, the bank’s legal counsel did not meet with Whitford as was required by the bank’s client identification policies. Rather, the lawyer allowed the real estate agent to handle meeting with Whitford to sign the mortgage documents.
This made it clear at trial that Whitford could not have received advice from the lawyer as to the consequences of signing a mortgage. The lawyer further failed to report to the bank, as he was expressly required to do by the bank’s instructions, as to indicators of potential fraud such as recent sales of the same property at lower value or disbursements to unusual parties, both of which were present in this case.
The trial judge, Justice Dario, found that Whitford was “careless and naïve” rather than outright dishonest, noting that he admitted his mistakes in entering into the mortgage fraud, including facts such as accepting $5,000 that did not appear on any documents and were known only through his admitting them. Of the bank employee, the trial judge noted “either her credibility or her common sense is suspect”, and “showed a total disregard for the policies and requirements of her job”. The judge found in other bank employees a “lackadaisical adherence to security protocols and fraud prevention measures”.
In reviewing the law, Justice Dario noted that defenses to mortgage fraud by straw buyers do not often succeed. However, participation in the fraud by the lender makes the scenario far more complicated. Justice Dario applied the doctrine of ex turpi causa– that a party cannot benefit from their own improper act – finding that the bank employee was at the least, willfully blind to the indicators of fraud. Justice Dario then further found the bank liable for the actions of the employee. She concluded that the bank was precluded from recovering the deficiency against Whitford; but ordered him to repay the $5,000 that he received for participating in the scheme, and to pay $15,000 toward the bank’s legal and investigation costs.
The significant events of this case took place 13 years before the court decision, and lenders are now much more aware of the hallmarks of mortgage fraud and the need to not only have policies in place, but to ensure they are followed.
Case Commentary on Carbone v McMahon, 2020 ABCA 388
In a new decision, the Alberta Court of Appeal has confirmed the court’s usage of “virtual court” proceedings during the Covid-19 pandemic, denying rescheduling to a litigant who wanted to make her arguments in person.
Carbone v. McMahon (2020 ABCA 328) was an appeal to the Court of Appeal by a self-represented litigant, appealing a judge’s decision to strike legal actions she had commenced against two lawyers (who had been legal counsel to a plastic surgeon Ms. Carbone had previously unsuccessfully sued for malpractice). The appeal was scheduled to be heard – like most court appearances since the emergence of Covid-19 – by WebEx, a program that allows parties to participate in court hearings via either video or phone. In the days prior to the hearing, Ms. Carbone wrote to the court seeking an adjournment saying she did not have the technology available to her use WebEx. The Court denied the adjournment request, saying the court house would provide her with a laptop computer to use, or she could attend by phone, or make her arguments in writing.
On the day of the hearing Ms. Carbone attended by telephone. She repeated her adjournment request and objected to opposing counsel attending by video, as she felt it gave counsel an unfair advantage if he could see the court but she could not. To avoid any perception of giving one side a litigation advantage, the court asked counsel to reconnect by telephone without the video.
The Court of Appeal then went on to consider the substance of the appeal and in the result, dismissed Ms. Carbone’s appeal.
While the part of the decision concerning the use of WebEx contains no legal analysis – it is a simple consideration of an adjournment request – it underscores the Court’s commitment to the use of alternatives to in-person court hearing. It is noteworthy that the Court requested responding legal counsel to forgo the use of video technology, but perhaps understandable to avoid even the appearance of unfairness when dealing with a self-represented litigant arguing against highly experienced legal counsel.
It has been our experience at Hendrix Law to this point in the pandemic that many self-represented litigants have been able to use WebEx successfully, both its video and phone components. While argument in person in court has a long tradition, the use of alternative court formats increases the accessibility of the courts, particularly for disabled litigants and those outside of major urban centres, and we welcome the Court’s holding steadfast on the use of this technology.
As legal counsel to mortgage lenders, we are frequently asked by second or third mortgage lenders whether they should pay the arrears on a prior mortgage that is in default. Fundamentally, this is a business decision, not a legal one, but there are several factors that a mortgage lender should consider when making this decision. There are a number of advantages to paying prior arrears, but, in some cases, also disadvantages.
Reasons to pay prior mortgage arrears:
1. Keep control. Paying prior arrears and keeping the prior mortgage(s) in good standing keeps the prior mortgage in good standing so that the lender has no reason to take legal proceedings. This keeps the lower-priority lender in the drivers’ seat when it comes to foreclosure proceedings.
2. Avoid extra legal fees. If a prior lender remains in default, that lender will likely start legal action. The prior lender will start accumulating legal fees that are payable under its mortgage, therefore, having priority over the subsequent mortgage(s). This eats away at the equity for the subsequent mortgagee(s).
3. Earn additional interest. Most modern mortgages will contain a provision permitting a lower-priority lender to add any amounts that the lender pays to keep a higher-priority in good standing, into its mortgage balance. This means charging interest on those payments at your second-mortgage rate.
Reasons not to pay prior mortgage arrears:
1. Go along for the ride. If a higher priority mortgage is in default, a lower-priority lender may not have to do anything at all, but could simply wait for another lender to take foreclosure proceedings, and then “ride along” with that foreclosure and wait for the property to sell. Although this approach saves spending on legal fees and the payments to the prior lender, it has significant risk; a higher-priority lender who is well secured is not necessarily motivated to move a foreclosure quickly, and the court may order a long redemption period that puts lower-priority lenders who have not started their own legal proceedings at risk.
2. Throwing good money after bad. In Alberta’s volatile real estate market, sometimes the value of a property has depreciated since the mortgage was advanced, to the point that the property can no longer be sold for enough money to pay out all the mortgages on title (especially after realtor commissions and legal fees are factored in). It may not be wise to inject more cash into a loan that is already facing a shortfall. A second lender should always keep the equity situation in mind when making this decision. The services of professional appraisers and realtors may be used to assist in determining equity.
The decision on whether to pay prior mortgage arrears is not a purely legal decision, but a question of business strategy. We hope these factors assist in the decision making, and our lawyers are always available for consultation.
As always, Hendrix Law is working to protect our lenders from claims made by government authorities, namely, Revenue Canada, when exercising their super priority, now even over a discharged mortgage. This coverage will be added to all residential and commercial lending policies by our office.
An excellent article from Mortgage Professionals Canada and summary
Please note the disclaimer in the report.