Is there any evidence supporting the allegation that a lender was a participant in the fraudulent scheme?
Alberta, Canada
The following excerpt is from MCAP Service Corporation v. Molina-Tan, 2009 ABQB 472 (CanLII):
[13] There are no facts which substantiate the allegation that the lender was a participant in the fraudulent scheme. An affidavit was filed in this action that relates to another mortgage fraud action involving a different lender. That affidavit alleges that there was a witness to the transfer of envelopes of cash to an employee of that lender. That is not evidence that can be used in relation to the claim of this lender. That evidence is irrelevant. The Tans cannot rely on mere suspicion or allegations; they must swear to some facts to support this allegation: Royal Bank v. McLean para.33. This argument does not raise a triable issue. 2. MCAP was under an obligation to undertake due diligence, failed to do so and cannot now claim against the Tans
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