Reply to Notice of Criminal Liability by Noah S. Potechin, Merovitz Potechin LLP and National Bank of Canada

4:46 PM, Nov 20

Hello Sean,

I will do my best to explain the situation so that you are able to understand.  I know it can be complicated, and, as you state, you are not a lawyer.  But you need to remember I am not your lawyer.  I have stated this many times.  You should get your own lawyer because you do not know the law.  That is why legal advice is important.  I am not giving you legal advice.  

1) Standing – you are not the mortgagor (borrower).  Your late father was.  Your father’s estate is responsible for the debt.  Since you do not have a certificate of appointment of estate trustee issued by a court, you are not even entitled to notice.  Us communicating with you was an accommodation and a courtesy.  It is not your right to have your father’s lands as I understand you have at least one sibling.  Under Canadian law, she is also a beneficiary.  There may be other beneficiaries.  It is not, therefore, your sole inheritance to have your father’s lands. 

2) Title – title to the lands are still in your father’s name.  Not National Bank.  My client has a mortgage on the property.  It has not taken title.  If you want to change title from your father’s name to your name, it is very simple.  You go get a certificate of appointment of estate trustee.  Then you can take title to the land.  National Bank has no interest in taking the title to your father’s lands.

3) Law – You keep referring to the incorrect, and inapplicable laws.  Mortgages in Ontario are governed by the Mortgages Act.  Not the Bills of Exchanges Act.  No other law applies, as the property is in Ontario and the rights being exercised are found in the Mortgages Act or in the terms of the mortgage itself.  

4)  In order to get the money, your father was given a line of credit on the property, secured by the property.  Any money loaned, secured by a property, is a mortgage.  The Agreement is attached, and it is signed by your father.

5) Your father qualified for a mortgage and made payments thereunder until his death.  Upon his death the payments ceased, default occurred, and the balance became due.  Attached is the registered mortgage.  It states that your father borrowed $50,000 and that Standard Charge Terms 200440 apply to the mortgage. 

6) Please see the attached standard charge terms 200440 which are incorporated into the mortgage and note as follows:

a) s. 1.1 definition of Borrower is the Person or Persons named in the Mortgage Form as mortgagor.  You do not have the right to simply cross out your father’s name and write your own name.  Contracts cannot be unilaterally changed.  

b) s. 2.1 – the Borrower grants a mortgage over the property as security for payment of the debts.  Since the payments are not being made, the mortgage becomes due.  

c) s. 2.6 – the Borrower may remain in possession of the property as long as the Borrower is not in default.  Since the mortgage is in default, your father agreed that National Bank can take possession.  National Bank is not stealing the property.  This was what your father agreed to.

d) s. 2.7 – Discharge of the Mortgage will only occur when the full debt is paid.  The debt remains outstanding.  You have paid nothing towards the debt.  In fact, you have increased the debt because of the legal fees that are being incurred.

e) s 4.1 – payment is to be made upon demand.  Demand has been made.  You cannot assume the ongoing payments as the entire debt has become due and payable. 

f) s. 6.1.c. – One of the promises made by your father was to keep the property in a state of good repair.  The property is not in a state of good repair.  Therefore, there is non-monetary default.

g) s. 8.1 is a list of defaults under the mortgage.  The mortgage is currently in default under the following provisions:  a, c, d, f.

h) s. 9.1 – Upon default your father’s rights cease.  Your father.  Not you.  You have no rights under the Mortgage, as previously set out in 1 above. 

i) s. 9.2 – upon default the bank has the rights set out in this section.  s. 9.2.a. is to demand payment in full for the outstanding debt.  Since default has occurred, this right has been exercised.  Other rights it is exercising under this section are as follows: 

A) d – take legal action

B) e – enter upon the property and take possession

C) f – sell the property to pay the debt

You will note the above have all been agreed to by your father.  The Bank is not doing anything your father did not agree to.  Your father did not have to borrow the money from my client.  He chose to do so.  He knew the terms of the mortgage and continued to do so.

7) In addition to the terms of the mortgage itself, set out above, the Mortgages Act also provides my client with the rights it is exercising.  Under the Mortgages Act, s. 24 provides a statutory power to sell upon default. I will set it out below.  However, essentially, what it states is that when default occurs under the terms of any mortgage, the law grants to all mortgagees the right to sell the property:

Mortgages ActR.S.O. 1990, CHAPTER M.40…PART II STATUTORY POWERS Powers incident to mortgages after default24 Where any principal money is secured by mortgage of land, the mortgagee, at any time after the expiration of three months from the time of default in the payment of any money due under the mortgage or after any omission to pay any premium of insurance that by the terms of the mortgage ought to be paid by the mortgagor, has the following powers to the like extent as if they had been in terms conferred by the mortgage:Power of sale1. A power to sell, or to concur with any other person in selling, the whole or any part of the mortgaged property by public auction or private contract, subject to any reasonable conditions the mortgagee may think fit to make, and to buy in at an auction and to rescind or vary contracts for sale, and to resell the land, from time to time, in like manner without being answerable for any loss occasioned thereby.

8) Our Courtesy – as a courtesy to you, and with no obligation to do so, we offered to you an opportunity to pay the debt.  You stated that you wished to take on the debt.  In your email of October 20, 2020 at 4:49 AM, reproduced below, you state clearly: “…I Will be paying by bank draft or certified check”.  Here is the exchange with my assistant Laraine.  

From: vonDehnVision <gnosticwisdom37@gmail.com> Sent: October 20, 2020 4:49 AM To: Laraine Burton <LBurton@mpottawa.com> Subject: Re: FW: National Bank of Canada mortgage from Joe Von Dehn Hi Laraine, No, I Will be paying by bank draft or certified check, what is the address for courier delivery?  Also, You didn’t mention if it would be possible to have an amended discharge statement prepared with interest calculated to the fifth of November.  Again, if it’s a problem, don’t worry about it.   Finally, I Will need to see a copy of the Signed contract to include with the statement of discharge.  Everything appears to be in order, but You must prove the obligation before as King of Me to Honour it, You have not produced the contract agreement yet. Thank You, I look forward to hearing from you, Sean On Tue, Oct 20, 2020 at 4:06 AM Laraine Burton <LBurton@mpottawa.com> wrote:Hello, Thank you for your email. The office is closed due to covid-19 – we have very limited access mostly for couriers. While we appreciate your desire to pay in person, it is not currently the best manner in which this matter can be addressed. The simplest way to address this is to provide funds into our firm’s trust account directly. The funds can be wired or direct deposited. Please let me know which one is better for you. Thank you,Laraine

As you can see, you led us to believe that you would be paying the funds by way of certified cheque or bank draft.  On November 6, when the envelope arrived, there was no certified cheque or bank draft.  Instead, you wrote on my discharge statement and applied your thumb print as though it has the same value as money.  That is not accepted by any Bank.  The mortgage became due and payable by actual funds.  Your thumb print is not acceptable.

9)  Your Libel of Noah Potechin – as you can clearly see above, everything that I have done has been in accordance with the terms of the agreement between your father and the bank.  Everything I have done has been in strict adherence with the laws of Ontario, and specifically the Mortgages Act as well as contract law as set out in the terms of the mortgage loan agreement.  You have accused me publicly of fraud and falsely stated that what I have done is criminal.  In fact, what you have done is defame me publicly.  The type of defamatory statements you have made are known as libel.  This is found under the Libel and Slander Act.  This is the law of Ontario.  According to the section on Libel, you have committed the act of Libel as follows:

Libel and Slander ActR.S.O. 1990, CHAPTER L.12…DEFINITIONS1 (1) IN THIS ACT,“BROADCASTING” MEANS THE DISSEMINATION OF WRITING, SIGNS, SIGNALS, PICTURES AND SOUNDS OF ALL KINDS, INTENDED TO BE RECEIVED BY THE PUBLIC EITHER DIRECTLY OR THROUGH THE MEDIUM OF RELAY STATIONS, BY MEANS OF,(A) ANY FORM OF WIRELESS RADIOELECTRIC COMMUNICATION UTILIZING HERTZIAN WAVES, INCLUDING RADIOTELEGRAPH AND RADIOTELEPHONE, OR(B) CABLES, WIRES, FIBRE-OPTIC LINKAGES OR LASER BEAMS,AND “BROADCAST” HAS A CORRESPONDING MEANING; (“RADIODIFFUSION OU TÉLÉDIFFUSION”, “RADIODIFFUSER OU TÉLÉDIFFUSER”) LibelWhat constitutes libel2 Defamatory words in a newspaper or in a broadcast shall be deemed to be published and to constitute libel.  R.S.O. 1990, c. L.12, s. 2.

In addition to civil libel, the Criminal Code of Canada includes defamatory libel as a criminal activity.  Your conduct of falsely and publicly accusing me of criminal activity could very well be, criminal itself.  I would not go so far as to accuse you of criminal activity though.  Here is what the Criminal Code has to say about the matter :

Criminal Code (R.S.C., 1985, c. C-46)Definition298 (1) A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published.(2) A defamatory libel may be expressed directly or by insinuation or ironyo   (a) in words legibly marked on any substance; oro   (b) by any object signifying a defamatory libel otherwise than by words.

10) Your Libel of National Bank – As in 9) above, your false public statements about National Bank also constitute libel which comes with civil liability.  Everything that I stated above related to your libel against me, equally applies to your libel against my client.

11) Value – you state in one of your posts that the property is worth between 150,000 and 200,000.  The bank has no way to confirm that.  Do you have an appraisal?  If so, please provide.  If you want to access the equity, you can do so by getting a certificate of appointment of estate trustee.  If the property is sold by me, for my client’s debt, I hold the remainder funds in trust pending receipt of a certificate of appointment of estate trustee.  The Bank does not take the equity.  But interest and legal fees continue to accrue until the Bank is paid.  This is draining the value that will remain for the estate.  If you want to stop draining the estates equity, I suggest someone get a certificate of appointment of estate trustee as soon as possible.

11) Apologies and additional posts and retractions – it is my expectation that you will post everything that I have sent you here, as you promised to do.  As well, I expect a retraction for your libel against me and my client.  I expect a public apology for falsely accusing me of criminal activity.  My client expects a public apology for falsely accusing it of criminal activity.  

12) The Future – I expect that I will not hear from you again, unless and until you have standing (see 1 above).  If you should present me with a certificate of appointment of estate trustee, I will deal with you as the estate trustee for your father.  Not in your personal capacity.  Unless such a certificate is provided, I will not respond to any more emails or accusations..  However, if I receive any additional threats, accusations or other publicly available broadcasts that are libelous in nature, against me, my firm or my client, we will pursue remedies in court.

Govern yourself accordingly.  Noah

My reply Shall be forthcoming, though My Wish was to have this ridiculous response on the Record before I do.

And the formal reply can be found here.