2011 QCCQ 13756, 2011 QCCQ 13756

Impellezzere c. Moaboulou Mbangue 2011 QCCQ 13756 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-115124-093 DATE: October 24, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ANGELO IMPELLEZZERE […] LaSalle (Québec) […] Plaintiff vs.

ESTELLE NADÈGE MOABOULOU MBANGUE […] LaSalle (Québec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Angelo Impellezzere, sues the Defendant, Estelle Nadège Moaboulou Mbanque, for a balance of $8,500 allegedly owned on a loan of $10,000 made July 14, 2006. [ 2 ] He also claims miscellaneous costs, for a total of $8,695.92. [ 3 ] In her written defence, the Defendant alleges having repaid the loan in full.

ISSUE [ 4 ] The loan of $10,000 evidenced by an acknowledgment of debt signed by both parties July 14, 2006 is admitted. The document (P-3) as first drafted called for payments of $400 per month.

The text is changed and initialled by the Plaintiff to $300 per month. [ 5 ] In fact, the Defendant provided the Plaintiff with a series of post-dated cheques in the amount of $500 each. [ 6 ] In the written proceedings, the Plaintiff admits receipt of $1,500 and during the trial, he admitted receiving additional amounts. [ 7 ] The admission of some payments by the Plaintiff opens the door to testimonial evidence of the payments made. [ 8 ] The question to be decided, therefore, is whether the testimonial and documentary evidence provided by the Defendant, viewed in light of the entire evidence in the case, is sufficient to establish proof of the extinguishment of the debt in whole or in part.

FACTS [ 9 ] The Plaintiff produced a document written by his friend, Sharon Smith, who became involved in the collection of the loan (P-5).

[ 10 ] The document is the reconstitution of payments that the Plaintiff admits having received. [ 11 ] He alleges that the first two post-dated cheques were returned "NSF" but replaced by the Defendant with cash. He claims for "NSF" charge. [ 12 ] He admits payment of $500 by cheque drawn on the CIBC on the 23 rd of June 2008. [ 13 ] The other payments he admits were made cash, $500 on February 16, $500 on March 8, and further $500 paid with three partial payments of $100, $50 and $350 in April and May 2008. [ 14 ] In

summary, he admits payments totalling $2,500, as it would appear that he treats one of the cash payments that of February 16, 2008 as the replacement of the "NSF" cheque #59, dated February 9, 2007. [ 15 ] He produces this cheque (P-4), which clearly bears a stamp showing that payment was not honoured. [ 16 ] The Plaintiff is mistaken in, at least, one respect: he asserts that he only deposited the first two cheques and that these were returned "NSF".

In fact, documents produced by the Defendant, after the hearing, show that there were a total of four cheques drawn on Canada Trust which were deposited by the Plaintiff, cheque #52, dated 09/09/2006, cheque #56 dated 09/11/2006, cheque #58 dated 09/01/2007 and cheque #59 dated 09/02/2007. [ 17 ] The Court only has proof that one of these cheques, #59 dated 09/02/2007 was returned "NSF". [ 18 ] The Defendant produced copies of her bank statements with TD Canada Trust showing that cheques #58 and #59 cleared through her account but she does not provide the statements with respect to cheque #52 in September of 2006. [ 19 ] On balance, the documentary evidence coupled with the Plaintiff's admissions establish payments totalling $2,500 by cheque of which two payments of $500 were replaced by cash, plus an additional $1,000 in cash payments, a total then of $3,500. [ 20 ] The Plaintiff had his attorney send a letter of demand on August 14, 2008 (P-7) claiming a balance of $8,500.

This is also the amount mentioned in the demand, with the claim, of course, being reduced to the $7,000 maximum permitted in the Small-Claims Division. [ 21 ] In her testimony, the Defendant asserts having paid a series of $500 cash payments per month, eleven in all, between August 2007 and August 2008 for a total of $5,500. [ 22 ] Adding this to the $2,500 paid by cheque, she would still owe $2,000. [ 23 ] Other testimonial evidence was not of great assistance to the Court.

Lyne Emah, a friend of the Defendant, testified that on two occasions, she saw the Defendant in situations where she may have been making a payment to The Plaintiff. In the first of these, she was at the Defendant's house when the Defendant went to the door saying that she was going to make a payment.

The second occasion was in the Defendant's hairdressing salon where The Plaintiff was present and the Defendant told Lyne Emah that she had made a payment to him. [ 24 ] This testimony is not particularly helpful because the witness did not actually see money changing hands. [ 25 ] The Defendant also asserted that she could prove having received money from a relative through Western Union transfers and that this would support her allegation that she had made payments. [ 26 ] She produced a statement from MoneyGram International showing the transfer of an amount of $1,573.80 on August 29, 2008.

But, there is nothing connecting this transfer to a payment to the Plaintiff.

She also produces (D-7, D-8, D-9 and D-10) bank statements on her account at the CIBC showing that she made various withdrawals. [ 27 ] Again, there is nothing connecting these withdrawals to a payment of the Plaintiff. [ 28 ] Finally, the Defendant produces a recording taken from her smart phone and transferred onto a CD (D-6). [ 29 ] In the recording, we hear part of a conversation between the Plaintiff and the Defendant concerning various payments she has made to him at various times, both to him personally, to his son and to his friend, Sharon. [ 30 ] The Plaintiff speaks of how, after a cheque came back "NSF", he stopped depositing the cheques and started receiving payments in cash: "Angelo: I don't know how many month, I didn't border you, then you told me to put the next check in, I put the check in, that one cam back NSF, that is when you were in the hospital, I didn't border you, I keep the check, I have the check at home, and I didn't put no more check in the bank since then, then you gave me cash, I pic it up in your house, I pic it up here, I pic it up there, I pic it up in your house. [sic] Me: o.k. and I gave to CHERREN too Angelo: yeh, I am counting all that, when you gave me, or Cherren or my son, I mark every thing down Me: how much Angelo: even 50$ I mark down

Me: how much Angelo: I don't know, 7000$ or 8000$ I can't tell you Nadège Me: you can tell Angelo: because if I tell you, I might be wrong, may be it is 7000$ may be 8000$" [ 31 ] The Defendant relies upon this recording as an admission made out of Court by the Plaintiff that she had paid $7,000 to $8,000 i.e. most of the loan. [ 32 ] The Plaintiff answers that the recording is only part of the conversation and that what he was really saying that she owned him $7,000 or $8,000.

ANALYSIS [ 33 ] It is always difficult, in cases involving cash payments that are not properly documented through receipts, to arrive at a satisfactory result. [ 34 ] The burden of proof lies upon the Defendant, who admits the loan, but asserts payments that she cannot prove adequately through documents and the Plaintiff's admissions. [ 35 ] The Courts permits testimonial evidence because there is a commencement of proof: the Plaintiff, and his friend Sharon, have admitted receipt of certain cash payments and, in the recording, the Plaintiff speaks of payments made either to him, to his son or to Sharon at various times and at various places. [ 36 ] While admitting having received payments, the Plaintiff cannot properly document what was received and was not received.

His testimony that he only deposited two cheques is clearly mistaken: the cheques returned to TD Canada Trust show that at least four payments made by cheque on that institution were presented for payments of which at least two cleared. [ 37 ] The Plaintiff's testimony is therefore not particularly reliable. [ 38 ] The Defendant gives testimony that is straightforward and, the audio recording is more consistent with an admission on the part of the Plaintiff that he received in total $7,000 or $8,000. [ 39 ] From the admissions made in Court and the documentary evidence, he received at least $3,500. [ 40 ] This conversation would have been the opportunity for the Plaintiff to clearly state how much money was owed to him and at best, he admits that he is not in a position to give an accurate figure. [ 41 ] On the whole, the Defendant's testimony is more probative and it tends to be supported by the audio recording. [ 42 ] The Court accepts her testimony therefore as fulfilling the burden of proof as to a series of cash payments from August 2007 to August 2008, in the amount of $5,500.

Added to cheques totalling $2,500, she has fulfilled the burden of proof to the extent of $8,000. [ 43 ] This roughly the same what was admitted by the Plaintiff in the recorded conversation, $7,000 or $8,000. [ 44 ] The Courts is, therefore, satisfied that payments totalling $8,000 have been proved and will condemn the Defendant to the balance of $2,000. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $2,000, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from August 14, 2008; CONDEMNS the Defendant to pay, to the Plaintiff, judicial costs in the amount of $155. __________________________________ DAVID L. CAMERON, J.C.Q. Dates of hearing: January 25 and June 2, 2011