In two recent and related decisions, the Alberta Court has taken the opportunity to warn financial institutions to be more diligent in preventing mortgage fraud. In Royal Bank of Canada v Azizuddin, 2015 ABQB 327, and costs decision 2015 ABQB 683, the defendant (a recent immigrant) was duped by rogue third parties to enter into a high-ratio mortgage transaction as a "straw borrower". There was a subsequent default in payments and the plaintiff bank proceeded to foreclose on the mortgage and pursue a deficiency judgment against the defendant. The defendant attempted to argue a non est factum defence, which was not made out, and the plaintiff bank was granted judgment. While finding in favour of the bank, the Court also took the opportunity to remind financial institutions that they were in the best position to identify instances of bank fraud and prevent them from occurring. In situations where mortgagors were not at all involved in any wrong doing, the Court warned that it could, in the future, make inquiries into the lender's due diligence process, presumably as a factor to consider whether granting judgment. The Court also declined to grant the Plaintiff bank costs on a solicitor and client basis despite the clear terms of the mortgage permitting same. The Court found that in the event an award of solicitor client costs is not fair between the parties and is inappropriate in the public interest, the Court had the discretion to override a contractual term to that effect. In declining to award solicitor and client costs, the Court again took the opportunity to encourage lending institutions to take more steps in preventing instances of mortgage fraud.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
