Capital One Bank v. Christiansen, 2012 ABQB 697

Court of Queen ’ s Bench of Alberta Citation: Capital One Bank v. Christiansen, 2012 ABQB 697 Date: 20121109 Docket: 1203 07951 Registry: Edmonton Between: Capital One Bank (Canada Branch) Plaintiff - and - Dale Christiansen Defendant Corrected judgment: A correction was issued on November 13, 2012; the correction has been made and is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Dale Christiansen, who appears without counsel, appeals from an Order of the Master granting

summary judgment to Capital One for $5,494.17 plus interest at 19.8% from May 23, 2012 to September 26, 2012 plus costs on a solicitor/client basis. The Order was granted on September 26, 2012. [ 2 ] Capital One ’ s claim was for debt owed by Mr. Christiansen on a credit card as of May 23, 2012. It claims the interest and the solicitor/client costs pursuant to the terms of an agreement between the parties.

[ 3 ] Mr. Christiansen filed a Statement of Defence in which he stated that he had a heart attack and was off work for more than 2 years, and had therefore been unable to pay. He stated that he had been able to return to work and had made a payment of $500 on the Capital One credit card debt on June 16, 2012.

He also said: I talked to a representative from Capital One explaining my situation and they agreed to drop all interest on my account once I could start payments. [ 4 ] The affidavit filed by an employee of Capital One in support of the application exhibits the terms of the credit card agreement, and copies of 52 monthly credit card statements relating to Mr. Christiansen ’ s account from June 10, 2007 to October 14, 2011. Though these monthly statements are presented as support for the statement in the affidavit that Mr.

Christiansen was indebted to Capital One for $5,494.17 at the time of the Statement of Claim, the balance owing according to the last statement exhibited, the statement of October 14, 2011, is $4,785.21. If there was a monthly statement showing the amount claimed, it is not exhibited. [ 5 ] Mr. Christiansen filed an affidavit in response to Capital One ’ s application. He swore: After having a heart attack I could no longer work and went on E.I. which barely paid my bills for the first year.

The second year I depleted all monies and was forced to rely on the good heartedness of family and friends who loaned me monies to carry on. . . . I did make arrangements to pay Capital One and they agreed that they would not include the interest because of my situation and my willingness to settle the account. [ 6 ] Capital One filed no evidence disputing the accuracy of Mr. Christiansen ’ s affidavit. Before the Master, counsel for Capital One acknowledged that typically Capital One will enter the type of agreement Mr.

Christiansen described when their customer is “ in a tough spot ” . [ 7 ] The last three monthly statements exhibited to the Capital One affidavit are for periods ending August 14, September 14 and October 14, 2011. On each of those statements the balance owing is shown as $4,785.21. The statements indicate that no payment was made against the outstanding balance in those 3 months. On all 3 statements there is no interest charged on that unpaid balance. This provides corroboration for the undisputed evidence of Mr.

Christiansen that Capital One had agreed not to charge him further interest because of his incapacitation. [ 8 ] The transcript of the application before the Master also indicates that, responding to the Master ’ s questions, Mr. Christiansen said that he had paid 4 monthly payments of $500 towards the debt he owed Capital One. The Master observed “ That takes you down – if you ’ ve paid today, you have about $3500 plus some costs ” .

Counsel for Capital One agreed with that observation and noted that the payments had not been credited against the amount of the judgment he sought. [ 9 ] It is something of a mystery to me that, notwithstanding the evidence and the discussion which occurred before the Master, the Order which was presented to the Master and which he signed at the conclusion of the application granted

summary judgment for the full amount claimed, $5,494.17. [ 10 ] Further, the evidence supports the conclusion that Capital One agreed not to charge further interest after July 14, 2011. Yet the Master ’ s Order granted

summary judgment for interest at 19.8% from May 23, 2012 to September 26, 2012. I can see no foundation in the evidence for that part of the Order. [ 11 ] Further, the Order granted Capital One solicitor/client costs. It also dispensed with Rule 10.36(2) which would have required

that Mr. Christiansen be given notice and opportunity to attend before the Assessment Officer when the amount of the ordered costs was determined. The question of whether Mr. Christiansen should be given that opportunity was not raised before or addressed by the Master.

There was no mention of any reason why the requirement of notice should be dispensed with, or even of the fact that it was being dispensed with. [ 12 ] Indeed the subject of costs was not mentioned orally before the Master. [ 13 ] The credit card agreement exhibited to the affidavit filed by Capital One does not in fact mention solicitor/client costs.

Rather it says: You must also immediately pay us any expense we incur to collect your debt, such expenses shall be considered “ debt ” under this Agreement. [ 14 ] The Statement of Claim and the evidence filed by Capital One were both silent as to any expense Capital One had incurred to collect its debt. If such expense had been incurred, by the terms of the agreement, it ought to have been claimed in the Statement of Claim and proved in the evidence. I see no contractual basis for the awarding of solicitor/client costs. [ 15 ] On October 10, 2012, the Assessment Officer certified the costs payable by Mr.

Christiansen to be $2,471.71. [ 16 ] Finally, I note that the Order signed by the Master recited “ AND UPON NOTING that the Defendant has failed to appear although duly served with a true copy of the Notice of Application filed herein. ” This is patently not so. The transcript establishes that Mr. Christiansen was in fact in attendance and made representations to the Master. [ 17 ] I am satisfied that the appeal must be allowed. [ 18 ] There is a further troublesome aspect of this matter.

Forty six of the fifty two exhibited monthly statements show a monthly charge identified as “ Acct Bal Coverage Premium 1-800-693-3301". The amount of this monthly charge is different each month. The charges range from $1.75 to $45.35, average $21.17 per month, and total $995.07 over the 46 months. [ 19 ] There are 6 statements on which there is no such charge including the last 3 statements. On those, as previously noted, there is a significant balance payable shown on the statement. On those 3 statements there is no indication of any credit against the balance owing from coverage that Mr.

Christiansen was charged for. [ 20 ] There is nothing in the evidence stating the benefit Mr. Christiansen was entitled to receive for the $995.07 he was charged as “ Acct Bal Coverage Premium 1-800-693-3301". I understand and take judicial notice that such charges are normally for a form of insurance to cover the credit card holder in case something like serious illness prevents them from making the payment (or the minimum payment) required on their credit card debt. [ 21 ] Though the issue has not been raised, if a further application for

summary judgment is made in this matter, in my view the question of what benefit Mr. Christiansen ought to have received for the account balance coverage he clearly bought should be addressed. [ 22 ] As stated, the appeal is allowed. The Master ’ s Order and the Assessment Officer ’ s Certificate regarding costs are set aside. Mr. Christiansen is entitled to costs of this application. I fix those costs at $500.

Heard on the 2 nd day of November 2012. Dated at the City of Edmonton, Alberta this 9 th day of November 2012. Brian R. Burrows J.C.Q.B.A. Appearances: R. W. (Bud) Steen for the Plaintiff Dale Christiansen appeared without counsel _______________________________________________________ Correction to the Memorandum of Decision of The Honourable Mr. Justice Brian R. Burrows _______________________________________________________ In paragraph [20], the amount of “ $289.96 ” is incorrect. The correct amount is “ $995.07 ” .