Nussbaum v Stoney, 2017 ABQB 774

Court of Queen’s Bench of Alberta Citation: Nussbaum v Stoney, 2017 ABQB 774 Date: 20171213 Docket: 1603 03761 Registry: Edmonton Between: Gabriel Nussbaum Plaintiff - and - Maurice Felix Stoney and Eliza Marie Stoney Defendants _______________________________________________________ Reasons for Decision of S.L.

Schulz , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is an application for a Redemption Order in a foreclosure action. [ 2 ] The issue is the amount owing to the Plaintiff; specifically whether the Plaintiff can claim compound interest and solicitor/client costs. The Defendants claim the return of an overpayment and costs. [ 3 ] The mortgage in question is a “tick box” mortgage.

The boxes related to interest provide that the interest payable is to be adjusted as of April 20, 2010 at the rate of 15.99% per annum to be calculated monthly (clause 9(b), (

c) and (d)). [ 4 ] Are the words “to be calculated monthly” synonymous with “compounded monthly” or is the interest to be calculated as simple interest? It is a well-established principle that the words of the mortgage are to be clear and unambiguous with any ambiguity resolved in favour of the non-drafting party (the Mortgagors). If the Plaintiff Mortgagee wanted to calculate the interest by monthly compounding, it should have clearly said so in the mortgage. It did not.

I therefore find that the Plaintiff Mortgagee is only entitled to simple interest. [ 5 ] The Plaintiff Mortgagee is directed to recalculate the amount owing under the mortgage, using a simple interest calculation. The recalculation is not to include the Plaintiff’s excessive claim for fees in relation to cheques returned for non-sufficient funds and the 30 demand letters it issued. I previously declared those charges to be an unenforceable penalty.

The Mortgagee is to reconcile the amounts owing with the payments received from the Mortgagors, and that reconciliation is to be provided to the Mortgagors within 60 days of the date of this decision. [ 6 ] If there has been an overpayment by the Mortgagors of the amount owing,

Section 9 of the Interest Act , RSC 1985, c I-15 (“ Interest Act ”) allows for the return of any monies charged or paid in contravention of sections 6 - 8 of the Interest Act . The overpayment shall be paid back to the Mortgagors forthwith together with the party-party taxable costs to be assessed on notice if they cannot be agreed upon between the parties.

[ 7 ] If there is an underpayment by the Mortgagors, there will be a template one month Redemption Order, with a listing to follow at the fair market value of $145,000 or such higher amount as recommended by the listing realtor. The wording of the mortgage is not sufficient to allow for anything other than party-party taxable costs.

Those costs are to be assessed on notice if they cannot be agreed upon by the parties. [ 8 ] If the parties have any difficulty determining whether they fall under paragraph [6] or [7] of this decision, they should return to me within 75 days of the date of this decision to address their concerns. Dated at the City of Edmonton, Alberta this 13 th day of December, 2017. S.L. Schulz M.C.Q.B.A. Appearances: Patty P. Ko Bishop & McKenzie LLP for the Plaintiff Priscilla Kennedy DLA Piper (Canada) LLP for the Defendants