2012 QCCA 1955, 2012 QCCA 1955

Alexandris c. Express Finance Investissement Inc. 2012 QCCA 1955 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022712-129 (500-17-068369-118) DATE: November 2, 2012 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. PIERRE J. DALPHOND, J.A. GUY GAGNON, J.A. IRENE ALEXANDRIS APPELLANT - defendant v. EXPRESS FINANCE INVESTISSEMENT INC. RESPONDENT - plaintiff and OFFICIER DU BUREAU DE LA PUBLICITÉ DES DROITS DE LA CIRCONSCRIPTION FONCIÈRE DE MONTRÉAL IMPLEADED PARTY – impleaded party JUDGMENT [ 1 ] The appellant asks to set aside two judgments.

The first, rendered on April 25, 2012 by Lalonde J., dismissed her motion in revocation of a judgment granting the respondent's motion to take in payment her property. The second, rendered on May 3, 2012 by Chrétien J., refused a request for postponement and granted a motion to dismissed her opposition to a writ of execution in order to expulse her from the said property. * * * * * [ 2 ] In February 2010, the respondent loaned to the appellant an amount of $250,000.00 bearing interest at the rate of 15% per year.

This loan was for a one-year term renewable subject to a prior written notice from the borrower and the payment of an administration fee of $7,500.00. [ 3 ] In the spring of 2011, the appellant ceased making payments. On August 12, 2011, a prior notice of the exercise of a hypothecary right was served on the appellant personally. The amount in default was then of $273,614.19. Furthermore real estate taxes had to be paid by the lenders. [ 4 ] On October 17, 2011, the respondent instituted a motion for forced surrender and taking in payment of the property, a duplex in which she occupied the ground floor unit.

On October 18, 2011, this motion was served on the appellant personally. [ 5 ] The appellant, who has been living in Quebec for 30 years [1] , did ignore both the prior notice and the motion claiming that she does not understand French. She also says that she was very busy or sick at the time and that “she did not have a chance to take care of her affairs”. [ 6 ] On January 30, 2012, a default judgment was rendered by a special clerk of the Superior Court.

On February 2, 2012, a copy of it was served on the appellant personally. [ 7 ] At the beginning of March 2012, there were some discussions between the appellant and the representative of the respondent. She was told that the property was now owned by the lender but she was offered 15 days to find the money necessary to buy it back for $400,000.00, otherwise she would be evicted.

A letter confirms that. * * * * * [ 8 ] On March 27, 2012, the appellant filed a Motion in revocation of the judgment rendered by the special clerk, way beyond the 15-day period since her knowledge of the existence of the judgment that was served on her on February 2. In this motion, she submits that she does not understand French and was too busy to look after the default.

She also refers to the fact that she believed that she will be provided time to find the money and that she was willing to pay but unable to do so. [ 9 ] In the said motion, she acknowledged that around the middle of March 2012, she understood that the respondent was the owner

of the house but ready to sell it back to her for $400,000.00, an amount that she describes as "a little excessive". She tried to find the money but did not succeed. [ 10 ] On March 27, 2012, she served her motion in revocation.

In the attached plea, she affirmed that the value of the property is well over $400,000.00, that she was willing to comply with her obligation "but the said obligations imposed on her by the Plaintiff were incorrect and too excessive", that it made it impossible for her to fulfill her obligation and that the property should be sold in justice instead of being taken in payment. * * * * * [ 11 ] On April 25, 2012, the motion in revocation was dismissed from the bench by Lalonde J. at the reception stage. The judge concluded that the motion and the defence did not raise any serious ground for a revocation.

Moreover, he indicated that the appellant was served personally a prior notice and the motion and had failed to do anything in response in order to protect her rights. [ 12 ] The following day, the respondent served on the appellant a prior notice of a Writ of possession with expulsion, ordering her to vacate the premises within 48 hours. [ 13 ] On April 30, 2012, the appellant responded by an Opposition to the writ where she claimed that she intended to appeal the judgment dismissing her motion in revocation but was waiting for a transcript of said judgment to do so (the transcript was provided on May 31, 2012).

This opposition was served on the bailiff but not upon the respondent. The notice attached to the opposition says that it will be presented to a judge on June 6, 2012. [ 14 ] On May 1, 2012, the respondent, made aware of the opposition, filed a Motion to dismiss it, claiming that it was dilatory and abusive. The notice attached to the motion indicated that it was to be presented on May 3, 2012. [ 15 ] On that day, Chrétien J. dismissed the opposition despite the appellant's written request for a postponement until June 6, 2012 in order for her to retain an attorney.

In fact, she was already assisted by an attorney who, apparently, was unable to attend that day. Chrétien J. said that the loan was in default, that the appellant had failed to act in due course and that she was raising no valid ground to justify a postponement of the hearing.

The motion to dismiss was granted and the opposition dismissed. [ 16 ] The very same day, in the afternoon, the respondent executed its writ of possession and the appellant was expelled from the property. [ 17 ] On May 25, 2012, appellant inscribed in appeal from both the judgment of Lalonde J. and Chrétien J. * * * * * [ 18 ] The Court is of the view that the motion in revocation did not raise any serious ground and that Lalonde J. was right to dismiss it at the reception stage. [ 19 ] A lack of sufficient knowledge of the French language may excuse the inability of the appellant to fully understand the content of the prior notice and the motion for forced surrender that was served personally on her.

However, it does not justify a failure to seek counsel and act accordingly within the shortest delay. The same is true once she was served a copy of the judgement. [ 20 ] As for the other grounds raised in the attached plea, none appears serious. [ 21 ] In these circumstances, the trial judge was right to conclude that she acted negligently and that her behaviour could not justify a revocation and to dismiss her motion at the reception stage. [ 22 ] It follows that the judgment granting the motion for forced surrender and taking in payment of the property is now final and executory.

Thus the respondent is in a position to execute namely by a writ of possession and the expulsion of the appellant. [ 23 ] Since this was already done, the appeal with regard to Chrétien J.'s judgment is moot. * * * * * [ 24 ] For these reasons, the Court: [ 25 ] DISMISSES without costs the appeal from the judgment rendered by Lalonde J. on April 25, 2012; [ 26 ] DISMISSES without costs the appeal from the judgment rendered by Chrétien J. on May 3, 2012. ANDRÉ ROCHON, J.A. PIERRE J. DALPHOND, J.A. GUY GAGNON, J.A.

Mtre Judah L. Wolofsky Wolofsky et associés For the appellant Mtre Joël Brassard Mtre Jean-Maxim LeBrun Dunton, Rainville For the respondent Date of hearing: October 31, 2012