2018 QCCQ 7064, 2018 QCCQ 7064

Malabanan c. Rojas 2018 QCCQ 7064 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-701834-170 DATE: September 24, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE ÉRIC DUFOUR, J.C.Q. ______________________________________________________________________ NATIVIDAD MALABANAN Plaintiff vs.

HELEN ROJAS -and- DENIS BRAIS Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Natividad Malabanan, claims $9,750 from the Defendants Helen Rojas and Denis Brais, pursuant to two loans which remain unpaid to this date except for an amount of $1,250. [ 2 ] Defendants plead that they paid the loans and therefore deny owing anything to Plaintiff. [ 3 ] For the reasons set forth, Plaintiff’s claim will be granted in part.

CONTEXT AND ANALYSIS [ 4 ] On June 27, 2014, Plaintiff agreed to lend $3000 to Defendants Rojas and Brais [1] at an interest rate of 6 %. The money was to help Mrs. Rojas, amongst other things, to finance her cosmetics business and to pay the immigration fees for her children who moved from the Philippines to the Province of Québec. [ 5 ] On September 8, 2015, another loan of $7000 was granted to the Defendants by Plaintiff [2] . This loan bears interests at 7 %. [ 6 ] Both loans were payable by monthly instalments.

Plaintiff alleges that, so far, Defendants have only reimbursed $1,250, leaving an unpaid balance of $8750. [ 7 ] On April 2017, Plaintiff sent a demand letter to the Defendants [3] . [ 8 ] Defendants claim that they have paid the total amount of money they borrowed from Plaintiff, the latest payment having been made in April 2016. They rely on three documents [4] which they argue establish that Plaintiff has admitted that the loans have been fully repaid. [ 9 ] The Court concludes the opposite. [ 10 ] Firstly, exhibits D-6 and D-6

A) do not prove the payments Defendants say they have made. In fact, those documents merely show that someone – yet unidentified - received $5,500 from Plaintiff. No other conclusion can be drawn from these documents and Defendants wrongfully rely on this evidence. [ 11 ] Secondly, Defendant Rojas wrote a letter to Plaintiff on August 12, 2016 [5] . This letter reads in part as follows: «Thank you for being patient. I know that I should have to pay you ASAP. But circumstances happened. Now I planned to pay you back to have a peace of mind. (…)».

If, as she alleges, Defendant Rojas did pay everything she owed to Plaintiff as of April 2016, why did she write such a letter on August 2016? In fact, Exhibit P-3 confirms the Plaintiff’s position that money was still owed pursuant to the loans. [ 12 ] Defendants also allege that Plaintiff set them up while the parties made the second loan. On that occasion, argue Defendants, Plaintiff was lending them an additional $4000, not $7000 as Plaintiff claims, this latest amount being the total of the first loan ($3000) and the second one ($4000).

Defendant Brais testifies that Plaintiff promised to tear apart any document establishing the first loan of $3000 and that the parties would move on with only one loan of a total amount of $7000. [ 13 ] On this issue, the testimony of Mr. Brais is weak. Plaintiff’s testimony, to the contrary, is clear and credible. She strongly

denies the facts as set by Mr. Brais. As no other evidence supports the Defendant’s defence, the Court puts it aside. [ 14 ] Finally, as the Defendant’s indebtedness is greater than Plaintiff’s claim [6] , it is unnecessary to establish the exact amount of money outstanding under the loans and determine the portion of the payments relating to the interest and the portion diminishing the loans themselves. [ 15 ] Plaintiff also claims $1000 for general damages. She alleges suffering from anxiety and loss of sleep as a result of this whole situation.

She is upset for having had to file a law suit against her borrowers. She explains being stressed out by the fact that Defendants never returned her calls and left her in uncertainty. [ 16 ] On that point, Plaintiff’s claim is ill founded. Her situation is no different from any other citizen addressing a claim to the Court. The general damages she refers to are not supported by any evidence whatsoever. FOR THESE REASONS, THE COURT: [ 17 ] GRANTS Plaintiff’s claim in part; [ 18 ] CONDEMNS the Defendants to pay to the Plaintiff $8750 with interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec from April 27, 2017; [ 19 ] WITH COSTS of the court fee paid on the Application. __________________________________ ERIC DUFOUR, J.C.Q. Date of hearing: September 11, 2018