2011 QCCA 1618, 2011 QCCA 1618

Murray c. Xceed Mortgage Corporation/Corporation hypothécaire Xceed 2011 QCCA 1618 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021920-111 ( 500-17-063072-113 ) MINUTES OF THE HEARING DATE: September 9, 2011 THE HONOURABLE PIERRE J. DALPHOND, J.A. PETITIONER ATTORNEY LAVANDRIA ALETHIA MURRAY Mtre John Seymour Glazer LEITHMAN & GLAZER RESPONDENTS ATTORNEY XCEED MORTGAGE CORPORATION/CORPORATION HYPOTHÉCAIRE XCEED XCEED FUNDING CORPORATION/CORPORATION DE CAPITAUX XCEED Mtre Alexander Bayus GOWLING LAFLEUR HENDERSON MIS EN CAUSE ATTORNEY ALICE REEVES

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON JULY 13, 2011, BY THE HON. MICHEL DÉZIEL OF THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:31 Commencement of the hearing. 9:32 Submission by Mtre Glazer. 9:44 Comments by Mtre Bayus. Continuation of Mtre Glazer's submission. 9:58 Submission by Mtre Bayus. 10:16 Comments by Mtre Glazer. Continuation of Mtre Bayus' submission. 10:19 Reply by Mtre Glazer. 10:22 Comments by Mtre Bayus. 10:23 BY THE JUDGE. Judgment – See page 3. 10:29 Suspension. 10:39 Resumption of the hearing.

Mtre Bayus and Mtre Glazer confirm the hearing date for November 24, 2011. Annick Nguyen Clerk JUDGMENT [ 1 ] I am of the view that some of the issues raised in the motion are serious enough to deserve the consideration of this Court, namely those related to the

interpretation of art. 2761 C.C.Q. [ 2 ] I am also of the view that this appeal should not proceed unless the Appellant provides, in addition to the two certified

cheques already remitted to the Respondents' lawyer, totalling 21 000 $, an amount of $ 15,000 within 15 days of this judgment with the clerk's office or with the Respondents' lawyer or in any other acceptable form of security for the Respondents. [ 3 ] This amount should cover the amount contested, should the appeal by dismissed, outstanding arrears for the month of June, July, August, September, October and November, upcoming school board tax and ordinary and reasonable administration costs from the month of June through the hearing. [ 4 ] Given that there should be case management of the appeal; [ 5 ] Given rules 48 and 49 of the Rules of the Court of Appeal in Civil Matters , which reads as follows: 48.

Abandonment. Where the appellant’s arguments and documents standing in lieu of the factum are not served and filed within the established time limit, the appeal shall be deemed to be abandoned and

article 503.1 of the Code of Civil Procedure shall apply, mutatis mutandis . 49. Foreclosure. Where the respondent’s argument and, if applicable, documents standing in lieu of the factum are not served and filed within the established time limit, the respondent shall be foreclosed from filing and

article 505 of the Code of Civil Procedure apply, mutatis mutandis. [ 6 ] THEREFORE, THE UNDERSIGNED: [ 7 ] GRANTS leave to appeal; [ 8 ] PLACES the case on the role of November 24, 2011, in court room Pierre-Basile-Mignault, at 9:30, for a 60 minutes hearing; [ 9 ] ORDERS the Appellant, after having served a copy upon the Respondents, to file in the office of the Court, no later than October 7, 2011 , four copies of a written argument not exceeding 10 pages , of the documents that would normally have made up schedules I, II and III of his factum and of his authorities; [ 10 ] ORDERS the Respondents, after having served a copy upon the appellant, to file in the office of the Court, no later than October 28, 2011 , for copies of a written argument not exceeding 10 pages , of their supplementary documents, and of their authorities; [ 11 ] ORDERS the parties to present their written arguments on 21.5 cm X 28 cm (8 ½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12-point type, with no more than 12 characters per 2.5 cm; [ 12 ] Cost to follow.

PIERRE J. DALPHOND, J.A.