2011 QCCQ 12332, 2011 QCCQ 12332

Linhares Melo c. Torres 2011 QCCQ 12332 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-165937-098 DATE: October 13, 2011 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ NATALIE LINHARES MELO Plaintiff v.

JOSEPH TORRES Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims $30,050.51, representing the balance of a loan of $30,950.51, made by the Plaintiff to the Defendant on April 26, 2007. [ 2 ] The Defendant admits that the Plaintiff loaned him this amount to purchase a vehicle, however, shortly after the loan was made, the Plaintiff decided to convert the loan to a gift. The facts [ 3 ] In 2006, Plaintiff's daughter, Ashley Melo and the Defendant became romantically involved.

In fact, for sometime, the Defendant was living with Ashley Melo in Plaintiff's residence. Shortly after they met, Ashley Melo and the Defendant became engaged and were married in 2008. [ 4 ] In April 2007, the Defendant told the Plaintiff that he wanted to buy a vehicle, a Mazda, but his credit application was refused. [ 5 ] The Plaintiff explains she wanted her daughter and the Defendant to be happy.

She accompanied the Defendant to a Mazda dealership to guarantee the loan, but again the loan was refused notwithstanding that the Plaintiff was guaranteeing it. [ 6 ] It is then that the Plaintiff decided to have her bank issue a certified cheque to the Mazda dealer for $30,950.51, Exhibit P-1 , so the Defendant could purchase the vehicle. [ 7 ] This loan was to be reimbursed by monthly instalments of $450. The Defendant gave the Plaintiff several post-dated cheques of $450 each.

The agreement was that, prior to cashing one of the post-dated cheques, the Plaintiff was to inform the Defendant. [ 8 ] The Plaintiff cashed the May 25, 2007 cheque, Exhibit D-1 en liasse. For the June 2007 cheque, the Defendant asked the Plaintiff not to cash it and to wait until July. The Plaintiff gave back to the Defendant the June cheque but cashed a second cheque in July 2007 (Exhibit D-1 en liasse). [ 9 ] The Defendant could not continue reimbursing the amount of $450 per month.

He and Ashley Melo were looking to purchase a condominium and the Defendant had incurred several expenses to purchase appliances. It is then that the Defendant asked the Plaintiff to give back the remainder of the post-dated cheques, which she did in August 2007. [ 10 ] In 2007 and 2008, the Plaintiff paid many expenses for the couple. The wedding, the honeymoon and $58,000 as a cash deposit towards the purchase of a condominium, Exhibit D-8 . [ 11 ] Throughout this period, Ashley Melo and the Defendant experienced difficulties in their marriage.

The Plaintiff asked the Defendant to leave the family residence. [ 12 ] In the summer of 2009, the Plaintiff offered the Defendant to keep the vehicle, and she would forget the loan, if he agreed to transfer the condominium in Ashley Melo's name with all the furnishings. The Defendant refused.

[ 13 ] In September 2009, the Plaintiff asked her lawyer to send a demand letter to both the Defendant and her daughter Ashley, asking that they reimburse the loan made as a deposit to purchase the condominium, Exhibit D-4 .

On the same day, the same lawyer representing Ashley Melo informed the Defendant that steps had to be taken immediately to dissolve the marriage, separate the assets, pay the outstanding debts and proceed to sell the condominium, Exhibit D-3. [ 14 ] In November 2009, divorce proceedings were instituted between the Defendant and Ashley Melo, Exhibit D-4 . [ 15 ] The Plaintiff maintains that she asked on several occasions that the Defendant reimburse the loan made towards the purchase of the vehicle, but the Defendant always replied he only had money to reimburse his credit card loans. [ 16 ] The Plaintiff did not insist, to avoid that her daughter experience more trouble in the marriage.

The analysis [ 17 ] In light of the admission made by the Defendant that the Plaintiff did make a loan of $30,950.51, of which $30,050.51 is still outstanding, the Plaintiff has met her burden of proof. [ 18 ] The burden now shifts to the Defendant to show that the loan was converted to a gift. [ 19 ] Defendant takes the position that because the Plaintiff tore up the remainder of the post-dated cheques, this means that the Plaintiff was giving him the vehicle.

However, during his testimony the Defendant explains that he was reluctant to purchase a condominium because, with the car expenses, he could not pay this additional expense. [ 20 ] The Defendant adds that it is then that Ashley Melo and not the Plaintiff retrieved the post-dated cheques and ripped them up and told the Defendant to forget about the car loan. [ 21 ] When it was clear that Ashley Melo and the Defendant were separating and that a divorce would ensue, sometime in September 2009, the Defendant admits that the Plaintiff offered to give him the car if he left the condominium, which he refused. [ 22 ] These explanations certainly contradict his testimony that in the summer of 2007, some two years prior, the Plaintiff gave him the vehicle. [ 23 ] Laurie Torres, the Defendant's sister also testified that the Plaintiff offered to give the car to the Defendant, in exchange of the transfer of title of the condominium, but that the Defendant refused. [ 24 ] The evidence presented shows that the loan could have been converted to a gift, but under certain conditions, which the Defendant never accepted. [ 25 ] The Court has no hesitation in concluding that the Plaintiff made the loan of $30,950.51 to the Defendant, that the latter repaid $900, and that the balance of $30,050.51 is owed by the Defendant to the Plaintiff.

The loan was never converted to a gift. FOR THESE REASONS, THE COURT: GRANTS Plaintiff's action; CONDEMNS the Defendant to pay to the Plaintiff the sum of $30,050.51, plus interest at the legal rate and the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , as of August 1 st , 2007; WITH COSTS. __________________________________ DIANE QUENNEVILLE, J.C.Q. Me Nick Bouzouita PINSKY ZELMAN SEGAL SANTILLO Attorneys for the Plaintiff Me Pietro Iannuzzi Attorney for the Defendant Date of hearing: March 24, 2011