2013 QCCQ 16140, 2013 QCCQ 16140

Cassie c. Montecillo 2013 QCCQ 16140 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-128471-119 DATE: December 6, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ KAMALDAY CASSIE […] , Montréal, Québec, […] Plaintiff v.

JOSEPHINE MONTECILLO […] , Montréal, Québec, […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Kamalday Cassie is claiming $5,545.09 from Josephine Montecillo. She alleges that Ms. Montecillo failed to pay her the balance owed for Ms. Montecillo’s use of Ms. Cassie’s credit card and cell phone. Ms. Montecillo denies the action. The evidence: [ 2 ] Ms. Cassie and Ms. Montecillo had been friends since 2006. In March of 2007, Ms. Montecillo, who did not have a good credit rating, asked Ms.

Cassie to obtain a Fido phone for her and undertook to pay the phone bills. According to Ms. Cassie, Ms. Montecillo paid regularly on a monthly basis until June 3 rd , 2012, when she ceased remitting payments to Ms. Cassie. Ms. Cassie is claiming an amount owing of $535,35. [ 3 ] Ms. Montecillo admitted that Ms. Cassie provided her with a Fido phone which she used for a three year period but maintained that she paid all her bills. [ 4 ] Ms. Cassie also provided Ms. Montecillo with a BMO credit card in 2007. While the credit card is in Ms. Cassie’s name, Ms.

Montecillo had verbally agreed to pay the credit card charges. [ 5 ] Ms. Montecillo paid approximately $60 to $70 per month on a more or less regular basis until the spring of 2010. The credit card was primarily used for cash advances and following considerable charges to the card, the balance increased from $2,000 to $4,699 in April 2010. From this time onward, the monthly payments were increased to $200, although some payments were missed. [ 6 ] In May 2010, the account shows charges from the Philippines. The October 15, 2010 statement informs Ms. Cassie that she can no longer use her card.

The balance as of that date is $5,010.09. On November 15 th BMO closed the account. [ 7 ] Ms. Montecillo admitted to having received a credit card from Ms. Cassie, adding that the purpose was to take care of Ms. Cassie’s children. Ms. Montecillo claimed she used the card for only one year and made payments of $60 or $70 each month until 2010, paying what she could afford. She contended that she never saw the monthly statements regarding the credit card.

Analysis: [ 8 ] Ms. Cassie provided Ms. Montecillo with a BMO credit card in 2007. Ms. Montecillo undertook to pay the amounts charged. Ms. Montecillo paid a small portion of the charges on a monthly basis, beginning in 2007, but ceased making payments during 2010. She submits she is not responsible since she did not sign any agreement. However, a written agreement is not necessary to incur liability. Ms. Montecillo had accepted a credit card from Ms. Cassie and had also accepted to pay the costs incurred. Accordingly, she is responsible for the amounts charged to that credit card. [ 9 ] Although Ms.

Montecillo denies being indebted to Ms. Cassie, the amounts she paid did not meet the monthly balances owed. The evidence also shows that she used the credit card from 2007 onwards and she also used it in the Philippines in May 2010. [ 10 ] The Court finds Ms. Cassie credible. Ms. Montecillo acknowledged receipt of a credit card from Ms. Cassie and although she provided a few statements showing monthly payments of $60 and $70, she has failed to substantiate payments amounting to the balance owed when BMO advised Ms. Cassie that the card could no longer be used. [ 11 ] Ms.

Cassie, who has the burden of proof, has satisfied the Court by preponderant evidence of the allegations of her claim for the amount of $5,010.09. [ 12 ] The same is not the case with respect to the Fido account. Ms. Cassie provided Ms. Montecillo with a Fido phone and is claiming the amount of $535.35. Ms. Montecillo maintains she paid whatever amount was owed. [ 13 ] Ms. Cassie provided evidence that was incomplete and confusing. There is no bill showing an outstanding amount of $535.35 nor is there any paper trail that adds up to that amount. [ 14 ] Ms.

Cassie has failed to establish the amount she is seeking and therefore the Court cannot provide her with the recourse sought for this aspect of her action. FOR THESE REASONS, THE COURT: GRANTS, in part, Plaintiff’s action; CONDEMNS Josephine Montecillo to pay Kamalday Cassie $5,010.09 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since December 4, 2011 plus judicial fees of $159. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: August 27, 2013