legalease
CING BACKGROUND
Your lender client has considerable money to place. You are aware of a borrower who is so desperate for mortgage funding that she will agree to any terms whatsoever proposed by a lender. The borrower faces imminent foreclosure and no other lenders have come forward. Your lender can fund the transaction quickly. Might you be doing the lender-client a disservice by encouraging overly harsh mortgage terms? After all, what choice has the borrower but to accept any terms proposed? Could you provide a better service by suggesting that the lender charge a premium that recognizes the borrower’s
circumstances (for example the urgency and the risk), but not ask for grossly excessive terms? The BC Supreme Court in Astina Mortgages Group Ltd. v Galpin, 2019 BCSC 1811 (CanLII) provides some guidance.
ISSUE
The foreclosing lender obtained a court order to sell the security property to itself.
The borrower claims that: n the mortgage was unconscionable;
n the lender engaged in predatory lending;
n the lender’s purpose in lending the money was to collect an excessive lender’s
fee, collect the interest, and to then take her property; and n the lender preyed on the inequity of power and her desperate position and breached their duty to act in good faith. The borrower has made application to have the mortgage declared invalid and the property transferred back to her. While that application is waiting to be heard, she wants a court order: n allowing her to stay in her home; n prohibiting the lender from obtaining an order to take lawful possession of the home while the matter is waiting to be heard; and n ordering the other parties to disclose documents relevant to the application.
CMB MAGAZINE cmba-achc.ca
WINTER 2020 I
25
