The action involves a dispute over the purchase of a property in South Cayuga, Ontario. Paul Chiarelli (Third Party), the purchaser, failed to secure mortgage financing, leading to delays. First Canadian Mortgage Corporation (Plaintiff), a mortgage broker, arranged a $750,000 loan from Mary Wynia (Third Party) to Chiarelli, secured against the property. Chiarelli agreed to pay a broker fee of $37,500 to the Plaintiff. The Defendants, Marko Djukic and Duke Law Firm PC, were retained by Chiarelli for the transaction.
Key Points/Takeaways:
The Defendants received the mortgage monies in trust. Due to an error, all mortgage monies, including the broker fee, were advanced to Chiarelli without deducting the broker fee. The Plaintiff asserts the Defendants breached the trust by not returning the broker fee as instructed.
The Plaintiff sought summary judgment to recover the broker fee, prejudgment interest, and costs from the Defendants.
The Defendants argued there was no trust agreement specifying that they should pay the broker fee from the mortgage loan proceeds to the Plaintiff. They suggested Chiarelli was responsible for paying the broker fee directly to the Plaintiff.
Conclusion:
The court found no clear intention to create a trust regarding the broker fee, noting that the responsibility to pay the broker fee lay with Chiarelli, not the Defendants.The Plaintiff failed to demonstrate the existence of a trust agreement with the Defendants or that the Defendants breached such a trust. The motion for summary judgment and other relief sought by the Plaintiff was dismissed.
Costs:
The court invited the parties to agree on costs or submit brief written submissions if an agreement could not be reached. No amount specified in this case.
