BANKING - Negligent acts (duty of care)

Law360 Canada (February 11, 2021, 6:11 AM EST) -- Action by Toronto Dominion Bank (TD) for damages for breach of contract in relation to a mortgage fraud. The defendant Whitford was used as a strawman in a mortgage fraud. The two principal fraudsters, a former acquaintance and a realtor, persuaded him to take part in a residential home purchase, telling him it would offer him several benefits. Instead, through their deceit, as well as through failings on the part of the bank representative and the questionable handling by the solicitor involved, Whitford now stood alone to answer to a $583,733 deficiency that TD was seeking to recover. Whitford was 25 years old at the time and was inexperienced. He did not ask many, if any, material questions on how the deal was to work. He received $5,000 for his role in the scheme. Whitford stated that he only realized he was involved in a mortgage fraud scheme after the mortgage went into default. Whitford took the position that the doctrine of ex turpi causa should prevent TD from enforcing the mortgage in this case. Applying a wide interpretation to the contents of the statement of defence, it was clear that the pleadings set out negligence on the part of TD. Whitford alleged that the bank’s representative, Hussein, was involved in the fraudulent scheme. TD took the position that there was no evidence that it was a willing participant in the mortgage fraud scheme....
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