Perell J., who wrote The Law of Civil Procedure in Ontario, has made yet another determination against enjoining a mortgagee from selling under power of sale. (Armanasco v. Linderwood Holdings Inc.)
In so ruling, Perell J. relied upon Horstein v. Gardena Properties Inc [2006] O.J. No. 2757. (CA). The Horstein mortgagors obtained a higher offer after the mortgagee had entered into an agreement of purchase and sale (it’s always after the agreement of purchase and sale that the mortgagor’s amazing new offer magically appears).
As to what is required in the way of pre-sale evidence of improvidence, Feldman J.A. gives an indication as to what he says are points against improvidence:
[8] On the issue of improvidence, the offer accepted by the mortgagee was the best offer it had received after several months of exposing the property to the market. The purchase price exceeded the appraised value by a considerable amount, although the appraisal was admittedly dated, as all involved recognized that the value of the property had increased. Also, the mortgagee had engaged the services of a real estate agent requested by the mortgagors.
These Feldman J.A. statements suggest that: (i) failing to expose the property for several months will weaken the mortgagee. (ii) Picking the mortgagor’s choice of agent will strengthen the mortgagee.
Does this mean that refusing to use the mortgagor’s choice of agent weakens the mortgagee’s position against an injunction for improvident sale?
