MCAP Service Corporation v Westoby, 2016 ABQB 372

Court of Queen’s Bench of Alberta Citation: MCAP Service Corporation v Westoby, 2016 ABQB 372 Date: 20160630 Docket: 1504 00428 Registry: Grande Prairie Between: MCAP Service Corporation Plaintiff - and - Tanya Westoby Defendant _______________________________________________________ Reasons for Judgment of W.S. Schlosser , Master _______________________________________________________ [ 1 ] This is an application for an Order for Sale to the Plaintiff at $210,000.00.

The application is denied. [ 2 ] The subject property was appraised in July 2015, at $240,000.00 by a qualified appraiser. [ 3 ] On the court file there is a CMA which purports to be exhibit A to the Affidavit of a legal assistant sworn January 11, 2016. The CMA is dated December 2014. It estimates the value of the property at $230,000.00, and suggests a list price of $235,000.00. There was apparently an offer expected at that time.

The body of the January 11, 2016, affidavit is not on the court file. [ 4 ] The stated purpose of the reduction was to attract further interest in the property in the event the offer did not come through. [ 5 ] The realtor does not furnish her own affidavit. There is no evidence of her qualifications or experience. She was not tendered as an expert of any kind. There is no comment in the report about the change in value from $240,000.00 to $230,000.00 (or $235,000.00), other than to use the price reduction to attract interest. [ 6 ] If this CMA is properly in evidence at all, it cannot be relied upon.

It does not conform to Rule 6.11 or, for that matter, Form 25. [ 7 ] There is a second CMA on the court file. The CMA is dated January 15, 2016. The CMA is from the same realtor. It is attached as an exhibit to an affidavit of Sharon Graves, sworn and faxed-filed on January 18, 2016. This CMA, which is like the other, suggests a market value of $215,000.00; with a suggested list price of $220,000.00. The realtor makes a general remark about a downward trend in housing prices but the purpose of the reduced value is (again) to attract showings.

There is no real basis for a $15,000.00 reduction from the previous month. The realtor is not tendered as an expert. If this is evidence other than that a statement was made, it cannot be relied upon. In some circumstances a CMA might be used to adjust list price when a judicial listing is renewed but it is hardly evidence to establish value, or a deficiency, especially in this form. [ 8 ] There was a second appraisal done in April of 2016; this time by a qualified appraiser but not the same one as the first. Her opinion was that the market value is $210,000.00.

There is no explanation for the $30,000.00 drop in price in less than a year – in fact, no comment about the first appraisal at all. There is no evidence about whether ‘starter homes’ in this price range are more or less

saleable, or whether homes in this price range have suffered a proportionately greater decline in the Grande Prairie market. The condition of the house appears to be unchanged. [ 9 ] Master Smart concluded that the evidence supported a value of $215,000.00 and gave Ms. Westoby an opportunity to partially redeem the mortgage by paying $5,000.00. Ms. Westoby did not pay that amount by the deadline imposed by Master Smart.

She has tendered a copy of a bank draft as an exhibit to her affidavit, which was late and which plaintiff’s counsel has no record of receiving. [ 10 ] The payout amount is roughly $212,000.00 plus legal fees. An Order for Sale to the Plaintiff at $210,000.00 would attract a deficiency judgment, as this is an insured mortgage. [ 11 ] The province is in a dour mood. The economy is not good and with many in danger of losing their homes, it is important that the evidence of value be looked at carefully.

It is a legal irony that insured mortgages have less protection than conventional ones as the insurance protects the lender. [ 12 ] In my view, there is not sufficient evidence to establish the value at $210,000.00. Accordingly the application is dismissed. Dated at the City of Edmonton, Alberta this 30 th day of June, 2016. W.S. Schlosser M.C.C.Q.B.A. Appearances: Gloria Vinci Vinci Phillips for the Plaintiff Tanya Westoby Self- represented