2011 QCCQ 4835, 2011 QCCQ 4835

Aoudé c. Dranias 2011 QCCQ 4835 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-115700-090 DATE: May 9, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ JACQUES AOUDÉ […] Montréal Québec […] Plaintiff v.

THÉODORE DRANIAS […] Montréal Québec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Jacques Aoudé is claiming the amended sum of $7,000 from Theodore Dranias, alleging that Defendant took possession of his vehicle and transferred it to his own name, without Plaintiff's permission. Defendant denies the claim. The evidence: [ 2 ] Plaintiff was employed by Defendant. He needed a loan to purchase a vehicle.

Upon Defendant's recommendation, he obtained a $5,000 loan on September 8, 2008, from a company called Rapid Finance. The repayment

schedule was set at $150 per month, with an interest rate of 46.9% per year. Plaintiff then purchased a truck from Les Entreprises Phillippe Garon for $3,150. [ 3 ] Defendant, fearing Plaintiff would not honour his obligations to Rapid Finance, had Plaintiff sign a Promissory note, which included an obligation to transfer the registration of his truck to Defendant and pledge it towards his debt with Rapid Finance. Defendant also had Plaintiff sign for the said transfer of Plaintiff's truck. [ 4 ] Plaintiff maintained he signed the Promissory note under pressure from Defendant.

He also testified he did not understand the nature of the document providing for the transfer of his vehicle to Defendant. He claims he was told it was called a “proxy” document. He signed the documents, as required by Defendant, who was then his employer, based on trust. [ 5 ] Plaintiff paid his monthly installments to Rapid Finance. On or around the beginning of January 2009, Plaintiff left his employment with Defendant. [ 6 ] He began working elsewhere at a lesser salary, with payment every second week, rather than weekly.

Because of these changed conditions, Plaintiff was unable to meet one loan repayment to Rapid Finance. He alleges he arranged with Rapid Finance to continue paying and to replace the one missed payment. [ 7 ] Sometime in January 2009, Defendant changed the registration of Plaintiff's truck, registering Plaintiff's truck in Defendant's own name. Plaintiff was unaware this had occurred. Defendant then came to take possession of the truck. [ 8 ] Plaintiff called the police. Defendant showed the police his registration, which was now in Defendant's name and claimed Plaintiff had stolen the truck.

[ 9 ] Plaintiff maintains he had made his payments to Rapid Finance. He alleges that his truck was fraudulently transferred by Defendant to Defendant's name, without Plaintiff's consent. Plaintiff is seeking reimbursement for the cost of the truck and the cost of his garage repairs. [ 10 ] Defendant claims he had the right to take possession of the truck since Defendant had endorsed the loan provided by Rapid Finance and two cheques provided by Plaintiff were NSF. Defendant further claims that Plaintiff had agreed that in the event of default, Defendant would repossess the truck.

Analysis: [ 11 ] Plaintiff borrowed $5,000 from Rapid Finance. Defendant is not a co-signatory to the loan nor is he listed as a Guarantor. His name appears nowhere on the loan agreement or on the Promissory note between Plaintiff and Rapid Finance. [ 12 ] Defendant required that Plaintiff sign a Promissory Note on November 5 th , which states Plaintiff will reimburse Defendant the sum of $5,000.

It also states that Plaintiff agrees to sign over the registration of his truck to Defendant and pledges it towards the debt. [ 13 ] Contrary to the Promissory note which shows that Defendant loaned Plaintiff $5,000, Defendant admitted he did not provide any money to Plaintiff. The Promissory note therefore has no consideration and no validity. [ 14 ] Defendant maintained Plaintiff provided two NSF cheques to Rapid Finance and, on that basis, Defendant transferred the truck's registration to his own name. Defendant failed to substantiate his claim that NSF cheques had been given by Plaintiff.

In addition, Plaintiff's creditor was Rapid Finance and not Defendant. [ 15 ] Defendant also claims that Rapid Finance required Defendant to repay the sum of $4,251.70. He presented a letter from Rapid Finance dated February 28, 2011, which states that Defendant endorsed the loan provided to Plaintiff and Plaintiff had defaulted. [ 16 ] However, as already indicated, there is no evidence of any NSF cheques having been given or of Plaintiff's default.

In addition, no documentation was presented which shows Defendant's signature as the guarantor of the loan or that Rapid ever demanded the immediate payment of the balance of the loan from Defendant. [ 17 ] In sum, the transfer of Plaintiff's vehicle was based on Plaintiff having received $5000 from Defendant and allegedly defaulting but no money was ever given by Defendant.

Therefore, there is no ground whatsoever for Plaintiff to have signed the transfer of his vehicle's registration to Defendant and consequently, there was no right or justification for Defendant to have transferred Plaintiff's truck to Defendant's name. [ 18 ] Plaintiff has the right to the cancellation of the Promissory note. Defendant cannot return the vehicle to Plaintiff since he already sold it to another employee. Plaintiff is therefore entitled to compensation for his loss. [ 19 ] Plaintiff is seeking the reimbursement of his car repair costs.

Defendant did not sell the vehicle to Plaintiff and is therefore not responsible for any car repairs. However, Plaintiff is entitled to reimbursement of the sum of $3,150, which he paid to purchase his truck. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Defendant, Theodore Dranias, to pay Plaintiff, Jacques Aoudé, the sum of $3,150 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since his demand letter dated April 2, 2009. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: March 7, 2011