The Court of Appeal Vandenberg judgement has been updated to ensure no fraud is perpetrated with the assistance of an Appeal Court. Warren A. Lyon is the Barrister and Solicitor on file. The issue with Spence J's judgement is that there is no mortgage to be paid by Vandenberg. She is the owner of the property. Did the Court verify of there was any mortgage registered. So the judgment on March 11, 2011 should not have been a denial. The motion was denied in error by Spence J. on the basis that Ms. Vanden Berg had not moved promptly to set aside the default judgment once she learned about it in October 2010, and in any event, there was no defence on the merits as the mortgages were in default. She says she was self represented and was not sure how to proceed.
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We are concerned about this judgement appearing on Canlii since it is incorrect. We did not appear before the Court in May.
The Court of Appeal Vandenberg judgement has been updated to ensure no fraud is perpetrated with the assistance of an Appeal Court. Warren A. Lyon is the Barrister and Solicitor on file.
The issue with Spence J's judgement is that there is no mortgage to be paid by Vandenberg. She is the owner of the property. Did the Court verify of there was any mortgage registered. So the judgment on March 11, 2011 should not have been a denial. The motion was denied in error by Spence J. on the basis that Ms. Vanden Berg had not moved promptly to set aside the default judgment once she learned about it in October 2010, and in any event, there was no defence on the merits as the mortgages were in default. She says she was self represented and was not sure how to proceed.
All Court files are public record. But, you cannot steal them. In this case, "Angel Ronan" was assisting the client in getting a review of an order and nothing further. She was denied a Motion date before a Motions Court scheduling Judge as she sought a date to either appeal or review the order. Why would you deny her a date when you do not know what facts or information she intended to provide to the Court? She probably needed professional assistance but you cannot deny her a date. It is not res judicata. She is providing new facts and information. You can decide if it's Res Judicata after the hearing her new motion.
She needed a date either way and as it was denied, she sought a hearing before the Court of Appeal. Default Judgements are customarily set aside due to unfortunate abuses of the process by the Plaintiff with chicanery to defeat genuine service of the original claim. Once brought to the attention of the Defendant that their was an attempt at a default Judgement by the claimant and they still have not seen the claim, the default is set aside and time to enter the statement of defence is provided. It was a FSBO and she still owns the land anyway since the Claimant was really trying to underpay by $90,000.00 on the FSBO agreement of purchase and sale. They filed a claim against her, pretending to be the owner and alleged she was not paying the mortgage; that, instead, the defendant owed them for unpaid mortgage money. The whole claim of the Cheeks was purposed with fraud to facade the written and enforceable agreement between the parties, take the land and attempt to obtain it for $90,000.00 less than what was agreed. She had only asked us to help her with the motion scheduling Court. This other information was not provided. That was the purpose of her request before the Court of Appeal. The date was successful to give air to her situation. Vandenberg, who is still the owner, can order the current, illegal occupants to vacate. Warren and Angel Ronan helps. Click here for more.
This brief attendance confirms that an appeal was possible even if it was considered Res Judicata by some. One carrot is worth 300 ms of flight time Prions 2 ENERGY™. But, every order is Res Judicata; right? No; it is not. You can't suggest that leave of the Court to review an order is estopped. We agree to let the Judge decide but let the litigants have their date as requested for an appeal or a Rule 59.06 review. Yet, you can appeal the matter. In addition to an appeal, a review based on new facts and evidence is available to the litigant under rule 59 as this Appeal Court confirmed during the hearing. Rule 59. 06 states as follows: AMENDING, SETTING ASIDE OR VARYING ORDER Amending 59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding. R.R.O. 1990, Reg. 194, r. 59.06 (1). Setting Aside or Varying (2) A party who seeks to, (a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made; (b) suspend the operation of an order; (c) carry an order into operation; or (d) obtain other relief than that originally awarded, may make a motion in the proceeding for the relief claimed. R.R.O. 1990, Reg. 194, r. 59.06 (2). The problem is being denied a date before a trial scheduling court for either an Appeal or your rightfully requested motion under rule 59.06. it's just that before and after the Court of Appeal date in February of 2012, we do not know what new information the litigant intended to bring forward in a rule 59.06 motion if the date was granted by the Trial Scheduling Court Judge. The Court of Appeal on February 13 was set to address a trial/Motion Scheduling issue and not the substantive issue or the new information the client wanted the Court to consider. On the scheduling issue, a date was required and ought to be granted.
This is an appealable issue that could be heard and remedied by the Court of Appeal; itself or the Supreme Court of Canada. She would win on appeal. The substantive issue was not heard on February 13th. The new information on a 59.06 motion was not heard either.
All Court files are public record. Bit, you cannot steal them. In this case, "Angel Ronan" was assisting the client in getting a review of an order and nothing further. She was denied a date before a trial or Motions Court scheduling Judge as she sought a date to either appeal or review the order. She needed a date either way and as it was denied, she sought a hearing before the Court of Appeal. This brief attendance confirms that an appeal was possible even if it was considered Res Judicata by some. One carrot is worth 300 kms of flight time with Poo Power™. But, every order is Res Judicata; right? You can't suggest that leave of the Court to review an order is estopped. We agree to let the Judge decide but let the litigants have their date as requested for an appeal or a Rule 59.06 review. Yet, you can appeal the matter. In addition to an appeal, a review based on new facts and evidence is available to the litigant under rule 59 as this Appeal Court confirmed during the hearing. Rule 59. 06 states as follows: AMENDING, SETTING ASIDE OR VARYING ORDER Amending 59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding. R.R.O. 1990, Reg. 194, r. 59.06 (1). Setting Aside or Varying (2) A party who seeks to, (a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made; (b) suspend the operation of an order; (c) carry an order into operation; or (d) obtain other relief than that originally awarded, may make a motion in the proceeding for the relief claimed. R.R.O. 1990, Reg. 194, r. 59.06 (2). The problem is being denied a date before a trial scheduling court for either an Appeal or your rightfully requested motion under rule 59.06.
For instance, in a similar case I have from Welwyn Garden City, was the the debtor or the owner of the farm falsely sued as the debtor by the hopeful buyer refusing to pay the last sum but no one would really hear her as the real owner so she was forced to respond in what was really a fraud on the Court. She was the owner but being sued by a potential buyer as if the owner was the mortgagee who failed to pay.
Would the Courts aid and abet a fraud by refusing to hear the woman in Court and refusing a rule 59.06 motion date? instance, in a similar case I have from Welwyn Garden City, was the the debtor or the owner of the farm falsely sued as the debtor by the hopeful buyer refusing to pay the last sum but no one would really hear her as the real owner so she was forced to respond in what was really a fraud on the Court. Would the Courts aid and abet a fraud by refusing to hear the woman in Court and refusing a rule 59.06 motion date?
The Court of Appeal Vandenberg judgement has been updated to ensure no fraud is perpetrated with the assistance of an Appeal Court. Warren A. Lyon is the Barrister and Solicitor on file.
The Court's only agenda is justice; not racial hegemony or class hegemony. If there are new facts that will help, the Court wants and needs to hear them. A properly convened Court able to adjudicate the new facts will decide how and if the new facts impinge on the matter. For instance, you have new information that says Chisolom was really driving the vehicle as there was a dashboard camera confirming he was in care and control at the time of the accident. This will mean he is not only indictable for DUI but he may be liable in Tort for the related car accident or maybe he really wasn't driving. He really wasn't driving. But, the trial scheduling Court cannot decide you have no new facts when the full motion is not filed yet. The motions Judge will adjudicate the evidence and subject matter of the motion; not the Trial Scheduling Court Judge. If there are no new facts after hearing the motion, then it is Res Judicata. We helped her get another appearance before the Court and find the appropriate forum. The real issue was heard again by the Court to also ensure the litigant understood the nature of her dealings with the respondent. It was a mortgage in default and if it took another Court date to hear this plainly from a Senior Court, it was our pleasure to help the litigant obtain her requested and additional Court date; the date she requested to hear the Court confirm the details of the contractual mortgage arrangement again. The litigant insisted that she should have a right to understand her circumstance and the claim made against her. This is clear on the evidence of the Judgement you read here as set out below. We were happy to help. Click here.
COURT OF APPEAL FOR ONTARIO
CITATION: Cheek v. Vanden Berg, 2012 ONCA 285
DATE: 20120501
DOCKET: M40683
Feldman, Blair and Hoy JJ.A.
BETWEEN
Ralph Cheek and Consorcia Cheek, by their litigation guardians, Lyndon Ferareza and Nancy Ferareza
Plaintiffs (Responding parties/Respondents)
and
Shirley Vanden Berg and Hans Rosenthal
Defendants (Moving parties/Appellants)
Warren A. Lyon, for the moving party
Benjamin D. Eisner, for the responding parties
Heard: February 13, 2012
On a motion to review the order of Doherty J.A. dated November 7, 2011.
ENDORSEMENT
[1] The moving party, Ms. Vanden Berg, seeks to review the order of Doherty J.A. dated November 7, 2011, denying her motion for an extension of time to appeal the order of Spence J. dated March 11, 2011 where he refused to set aside the order for default judgment dated June 29, 2010. Ms. Vanden Berg also moves to set aside the order of Himel J. dated April 27, 2011 whereby she refused to review the decision of Spence J.
[2] On June 29, 2010, the responding parties obtained default judgment against Ms. Vanden Berg for the sale of mortgaged property based on default. Ms. Vanden Berg moved to set aside the default judgment on March 11, 2011, but the motion was denied by Spence J. on the basis that Ms. Vanden Berg had not moved promptly to set aside the default judgment once she learned about it in October 2010, and in any event, there was no defence on the merits as the mortgages were in default.
[3] Ms. Vanden Berg then moved for an emergency motion before Himel J. to review the order of Spence J. Himel J. held that the matter was res judicata and that Ms. Vanden Berg’s remedy was to appeal the order.
[4] Ms. Vanden Berg then filed a notice of motion on October 27, 2011 for an order extending the time to appeal from those orders. Doherty J.A. dismissed the motion on November 7, 2011. In his endorsement, he observed that Master McAfee had approved the sale in September 2011 and that the sale had been completed. He found that there was no basis to extend the time to appeal the order of Spence J., which was the order Doherty J.A. understood to be central. Nor was there any basis on which the moving party could succeed on an appeal of the order of Spence J.
[5] We see no error in the reasoning or the conclusion reached by Doherty J.A. Ms. Vanden Berg claims she was not properly served. The evidence is that she was not properly served and she can still bring fresh evidence to the Court to set aside that default Judgement.
Default Judgements can be set aside if there is any abuse of process or error in service as pointed out by Mr. Lyon who has worked to ensure Ms.Vanden Berg has a hearing before this Court. Himel J was obligated by the rules to provide her the motion date requested to provide fresh evidence under rule 59.06. she was not properly assisted by the Trial Scheduling Court that day in error. Im requesting the motion date and nothing further, Res Judicata is irrelevant. The Court did not know the Claim by the Cheeks is based on Fraud. They were not the owners suing a debtor. They were the debtor, attempting to defraud the owner Vandenberg.
However, Spence J. refused to set aside the default judgment because he says Ms. Vanden Berg had not moved promptly after learning of the judgment. There is basis to set aside that decision under rule 59.06. Since the property has already been sold, the justice of the case also does not require that an extension be granted so that an appeal in this matter can proceed. The sale can be set aside since the claim itself by the Cheeks is based on fraud. The report on the reference dated October 31, 2011 contains an accounting of the proceeds of the sale.
[6] The motion to review the decision of Doherty J.A. is dismissed with costs fixed at $1,000 inclusive of disbursements and H.S.T.
Signed: “K. Feldman J.A.”
“R. A. Blair J.A.”
“Alexandra Hoy J.A.”
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