2011 QCCQ 12578, 2011 QCCQ 12578

Zappone c. Garfinkle 2011 QCCQ 12578 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-121426-102 DATE: October 12, 2011 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ Mario ZAPPONE […] Laprairie (Québec) […] Plaintiff v.

Issie GARFINKLE […] Montréal (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Mario Zappone, claims from defendant, Issie Garfinkle, an amount of $7,000.00 in reimbursement of the sums he declares having paid to Defendant Garfilkle in excess of the amount to be paid by him pursuant to a judgement rendered against him by this Court on September 25, 2007 in the file bearing number 500-32-103998-078. [ 2 ] According to the terms of the said judgment, Plaintiff Zappone was condemned by default to pay to Defendant Garfilkle the sum of $4,000.00 plus interests at the rate of 59% per annum plus costs. [ 3 ] In execution of the judgment rendered in his favour, on April 19, 2009, Mr.

Garfinkle requested the issue of a writ of a seizure by garnishment which was served upon Mr. Zappone. In response to the service of the seizure by garnishment, Mr. Zappone filed a motion in opposition to the said seizure dated May 26, 2009. [ 4 ] By judgment rendered on June 23, 2009, this Court granted Mr. Zappone's motion in opposition and squashed the seizure by garnishment issued on behalf of Mr. Garfinkle.

In the minutes of the hearing regarding the motion in opposition to the seizure, the following is stated: « Pour les motifs exprimés verbalement, la requête est accueillie selon ses conclusions. » [ 5 ] The stenographic notes of the hearing held on June 23, 2009 regarding the motion in opposition to the seizure by garnishment were filed as evidence in the present case. [ 6 ] At pages 63 and 64 of the stenographic notes of the hearing, the following is stated: « THE COURT: And the judgment will be the following.

The Court is seized of an opposition to a seizure made by the… by Issie Garfinkle and that seizure is to execute a judgment which was rendered on June 2007 which granted… which condemned the defendant to pay $4,000.00 plus interest at 59 percent, which comes to 2,360, with the court the total amount written in the writ of seizure is $6,684.00. Today, I have the testimony of the defendant who is opposing the seizure stating that he paid 11 times $500.00 and he tried to get receipts. The plaintiff (inaudible) to give him receipts. The last receipt he obtained for $200.00.

There is a stamp on that receipt which says ''final payment''. He also produced, to sustain his motion, a proof that a total amount of $3,970.00 was seized from his salary and he further testified to the effect that a rent was seized for $600.00. Given the fact that the defendant established to the satisfaction of the Court that he has paid over $6,684.00, consequently his motion for opposition to the seizure is granted. So, that's all, your motion is granted.

(…) » [ 7 ] It is clear from the judgment that Mr. Zappone has established to the satisfaction of the Court that the debt owing to Mr. Garfinkle pursuant to the judgment rendered in his favour on September 25, 2007 in the file bearing number 500-32-103998-078 has been satisfied in full and no outstanding debt remains. That is why the seizure by garnishment issued at the request of Mr. Garfinkle was quashed by the Court. [ 8 ] This being said, as concerns the demand filed by Mr. Zappone in the present case against Mr.

Garfinkle based on his allegations of overpayment, the documentary evidence filed by him as well as his testimony are not sufficiently conclusive to establish that he has in fact paid to Mr. Garfinkle more then what was owed to him pursuant to the judgment rendered on September 25, 2007. [ 9 ] Consequently, the action instituted by Plaintiff, Mr. Mario Zappone, must be dismissed. FOR THE FOREGOING REASONS, THE COURT: DISMISSES Plaintiff's action, without costs. __________________________________ ARMANDO AZNAR, J.Q.C. Date of hearing: September 26, 2011.