Hi Footloose,

Thanks for your encouragement and kind words. We went to court today with high hopes but was quite disappointed.

Although the judge was very nice and expressed that he felt sorry for me, he granted the summary judgement to RBC because he said he has to decide with the law (not compassion).

I repeatedly stressed that the case should be try in Small Claim court and the reason RBC put the Certificate of Pending Litigation is to ask for more legal costs in the Superior court. At one point the judge was questioning the merit of their Fradulent claim but RBC lawyer said she is not proceeding with motion on that claim. I do not understand what all this meant and why they can just separate their claims that way but it seemed the judge was satisfied with that answer.

I asked the judge to "dismiss" the FC claim because RBC cannot proof it and didn't provide any evident in record. However the judge said that he is not in the position to do so. Again I do not understand why he cannot. I thought that FC issue itself is a genuine issue (since I already acknowledged the debt) and that is what we are fighting for.

No matter how many time I tried to explain my position to the judge..obviously I wasn't doing a good job, he sum up by saying that I have to compensate RBC accordingly because I owe money to them. That I understand from the begining and I have been actively seeking for a settlement. It was RBC who are not flexible and haven't been willing to engage in any settlement discussions with us. The judge said I cannot force RBC to settle if they do not like my proposal. They have the right to do so. Does that mean I have no right and is at their mercy?

The judge concluded that RBC entitled their 20% interest and the "reasonable" legal cost is $5000. Mind you my original debt in Jan 2009 was $17000. I paid $7000 in 2009. In June 2010 my balance went up again to $22000. I paid $11000 (50%) again in Oct 2010. Now we have to yet come up with another $16000 in 30 days AND the judge granted RBC a writ! Does that mean they will force us to sell our house for only $16000?

In my opinion, you stand an excellent chance of having this Motion for a Summary Judgment defeated by the judge. RBC's lawyer may attempt to intimidate you and until now, it appears that way, but he will not intimidate the judge. You have a strong case, you have done your due diligence and you have attempted on several occasions to resolve this outstanding matter only to be thwarted by a lawyer who is more interested in his fees than bringing this issue to a successful conclusion.

When you come before the judge, make sure that all your documents are in order, try to be as confident as possible in your presentation, speak at a normal pace or slower and pause frequently in order for the judge to assimilate the facts as you present them. There are a number of items that the judge will consider before he makes a final decision. In your presentation to the judge, make sure that you stress your many attempts to resolve this matter in a reasonable fashion, including mediation, but that RBC's lawyer has steadfastly refused. You have acted as a prudent and reasonable person would in the circumstances only to be intimidated by the other party.

If the judge sincerely believes that one party ( namely you ) has done everything possible to bring about a reasonable and successful resolve to this matter while the other party has constantly refused to at least enter into a discussion, I cannot see how any judge could possibly make an informed decision and award a Summary Judgment to RBC.

I honestly wish you all the best on Thursday. Hold your head high and walk proudly. I KNOW YOU CAN DO IT.

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Educating one Consumer at a time

We got another motion court date set on Thur, 2 days from now. We are very nervous but we just want to bring a closure to this case.

Just to give a quick update. Our original balance of $9000 from Oct 2010 has grown to $21000, according to RBC lawyer as of last Friday. I don't know how they calculate the amount since they never provided us with a breakdown. They are worse than a loan shark....

Yesterday got a call from them again. This time they said they talked to RBC and felt sorry of our situation. They proposed a lump sum settlement of $15000. I told them if I had money I would have paid long time ago. That's the reason I have been suggesting monthly payment plan. The lawyer got very annoyed and said I have absolutely no chance of success and they will sure get the summary judgement. Oh he kept asking whether we plan to go to court for some reasons. And he kept referring our court date is Friday instead of Thur.

No matter what the outcome is I sincerely thank those who has spent time to help me. Cross your fingers and wish me luck.

What happened was I got a call from RBC lawyer the day before motion court saying that they would have to adjourn due to their failure to file a pre-trial paper. I am not sure which one they were referring to since they haven't sent us the complete motion material.

We went to the court anyway but couldn't find our case number listed. We were told we couldn't do much since RBC is the moving party so the case will be rescheduled again.

When we arrived home we received their factum. I went to Legal Help again and was told that since they served us the factum, eventhough it arrived a month late, we still have to respond. We cannot just rely on my original affidavit.

We were so confident had we went ahead to meet the judge. Now we are just so sick and tired of RBC lawyer's dirty tricks......

Curious to see what happened. I know of a few other RBC related matters and have found a very interesting pattern that could be addressed collectively. Is there a way we could talk?

I am so nervous because we will go to the motion court in 2 days. Just to give a quick update RBC lawyer failed to deliver motion materials by the agreed schedule. I only received an affidavit from a collection rep in RBC dated Feb 2010 and was served to me on Feb 11, 2011. I sent them 6 letters to propose settlement and asked them repeatedly for mediation. Heard nothing from them.

In early Feb I went to Legal Help and prepared my own affidavit. I was told since RBC failed to deliver their material, I only need a strong affidavit to stated that I owe money but I paid more than half already; that RBC has not been willing to consider my settlement and has not been acting in a reasonable manner; and that this case should be try in small claim court.

I don't know how this will end and I am so nervous I will say something wrong in the court to jeopardize the outcome. Any last minute advice will be greatly appreciated!!!

Thanks DanielBl. The lawyer at Legal Help confirmed that mediation is still in place but I cannot force RBC lawyer to go. He said the best is to document all my requests and present them to the judge on pre-trial meeting.

This Legal Help lawyer I talked to think RBC is too much considering I have already paid off half of the debt. His advise is to not accept the second mortgage deal because that means RBC will have interest to our property forever until the debt is paid off. He also said if their lawyer still hasn't delivered the motion materials that means they are looking into ways in settling this. He said I should stand firm and worse come to worse we will let the judge to decide. He also said $5000 in legal fee is just too much eventhough there is no limit in Superior Court. May be that's why they brought the motion there from the begining.

Apparently I don't need to do anything at this time other than sending them a final letter asking them to accept my monthly payment plan. We shall see.

I finally feel that things will get better from now after living in fears and stress for the past few months. I can't thank you enough for those who shared their insights and knowlege and support. You guys rock!!

Happy Holidays to all of you!

Well, I don't know where you live, but mandatory mediation is in effect in those 3 jurisdictions as of Dec. 10, 2010. At least the Attorney General thinks so. Easy to phone the court house for confirmation though.

http://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/changes_to_rules_of_civil_procedure_flowcharts.pdf

As well, the top of page 6, Rule 76, updated for 2010, also affirms that fact.

http://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/fact_sheet_simplified_procedure_76.pdf

If they haven't sent the motion materials by the due date, make sure you continue to document everything, and give it to the lawyer you'll be seeing next.

Got another call from RBC lawyer after I faxed him 3 letters requesting mediation. He claimed that there is NO more mandatory mediation and that the law has changed several years ago. He also claimed if there was it would have cost me $1000/day for mediation. His advise is to take the second mortgage deal and get on with life.

I digged more online and the link DanielBl provided and found nothing related to his claim. Why would mediation information still listed on all websites if the rule no longer applied?? Based on the date we set in the motion court I should have received the summary judgement materials a week ago. It is still outstanding and when I asked the lawyer he said he doesn't need to provide if we are in "negotiation". I seriously doubt that is the case but I cannot find any information regarding this. Any idea?

I will go to Legal Help again tomorrow to see what can I do to get the material so I can prepare my documents. I told RBC lawyer we do not accept his offer twice but he just keeps calling and threatening us with more legal costs. It is getting quite annoying now.

Sorry, I thought from your post yesterday, that since RBC rejected your mediation request outright, you didn't reside in any of the 3 mandatory mediation districts. Still not sure of the outcome given my post of Oct. 6, and that of NameUser (who is/was some sort of litigation specialist in BC) on whether the Courts will consider the transfer to be a fraudulent conveyance.

I would have done the same thing and rejected their offer. In fact, it's more like blackmail than an offer. If you refinanced a mortgage with them, you can be sure they'd make an absolute killing with padded brokerage, legal and interest costs. No wonder the vultures are smelling blood.