2018 QCCQ 3937, 2018 QCCQ 3937

Tellalian c. Khoderian 2018 QCCQ 3937 COUR DU QUÉBEC CANADA PROVINCE DE QUÉBEC DISTRICT DE MONTRÉAL LOCALITÉ DE MONTRÉAL « Chambre civile » N° : 500-22-240586-175 DATE : April 25, 2018 ______________________________________________________________________ BY THE HONOURABLE GENEVIÈVE COTNAM, J.C.Q. ______________________________________________________________________ GERARD TELLALIAN Plaintiff vs. STEPAN KHODERIAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On May 28, 2013, the plaintiff, Mr.

Gerard Tellalian lent to a friend, the defendant, Mr Stepan Khoderian, $ 100 000. The contract did not stipulate any term for the repayment of the loan. [ 2 ] Since 2015, Mr. Khoderian has been paying this debt on a regular basis. He gave a lump sum of $ 48 000 and paid some instalments of either $ 250 or $ 500 per month. At the date of the trial the outstanding balance is $ 38 000. [ 3 ] Mr. Tellalian is now asking the Court to declare that the balance is payable in full immediately. [ 4 ] While Mr. Khoderian recognizes that he owes the money he is requesting a one year delay to pay his debt in full.

QUESTION IN DISPUTE [ 5 ] The only question before the Court is the determination of the term for the repayment of the debt. THE CONTEXT [ 6 ] The parties are neighbours and have been friends for more than 20 years. Their mothers were best friends. [ 7 ] In 2013, Mr. Khoderian was going through a nasty divorce and was scared of losing his house. In order to help his friend and neighbour, Mr. Tellalian accepted to lend him $ 275 000. He gave Mr. Khoderian $ 100 000 on May 28 th , 2013. The balance of loan was to be tendered upon receipt of an inheritance by Mr. Tellalian. Although the evidence is not clear if M.

Tellalian ever came into such inheritance, the fact is that the additional amount of $ 175 000 was never lent to Mr. Khoderian. [ 8 ] The loan contract was prepared by Mr. Khoderian divorce lawyer. It does not specify a term for the repayment of the loan, nor does it mention any instalments to be paid. There are no provisions concerning the payment of any interest on the amount loaned. [ 9 ] Mr. Khoderian started repaying the loan in 2015. He took a mortgage on his house in order to pay a lump sum of $ 48 000.

That was the maximum amount he could borrow at the time. [ 10 ] He also paid 14 instalments of $ 500 per month. He then reduced his payments to $ 250 per month for 9 months. When Mr. Tellalian started asking for the repayment of the debt through his lawyer, Mr. Khoderian decided to increase his payments back to $ 500 a month. Altogether he has reimbursed $ 62 000 in three years. [ 11 ] Mr. Tellalian states that he is now retired, has serious health issues and that he needs his money. He testifies that he is in a dire financial situation though no specific evidence was brought to support this assertion. [ 12 ] Mr.

Khoderian recognises that he still owes $ 38 000 and adds that it is his intention to pay back the total amount of the loan within the next year. The evidence regarding his financial situation is also quite scarce. He testified that he was negotiating with a third party in hope to obtain another loan to be able to reimburse Mr Tellalian in full. He asks the Court to grant him a delay of one year in order to repay this debt. THE DECISION [ 13 ] The contract signed by the parties in May 2013 is a simple loan [1] . As mentioned, the contract does not provide for the

payment of interests nor does it specify a term of payment. [ 14 ]

Section 1512 of the Civil Code of Québec mentions: Where the parties have agreed to delay the determination of the term or to leave it to one of them to make such determination and where, after a reasonable time, no term has been determined, the court may, upon the application of one of the parties, fix the term according to the nature of the obligation, the situation of the parties and the circumstances. The Court may also fix the term where a term is required by the nature of the obligation and there is no agreement as to how it must be determined. [ 15 ] The situation, in this case, meets the criteria set forth in

section 1512: Deux conditions sont toutefois requises pour que le tribunal puisse intervenir et fixer la date de l’exigibilité de l’obligation. D’abord, il faut que l’obligation soit, de par sa nature, une obligation à terme, telle l’obligation de rembourser un prêt d’argent (

article 2314 C.c.Q. ), et ensuite qu’il y ait absence d’un terme convenu entre les parties relativement à l’exécution de l’obligation. [2] [ 16 ] In the absence of an agreement between the parties as to the terms of the loan, the Court will use its discretion to set a term. [ 17 ] In order to do so, the Court: […] doit tenir compte des critères prévus au premier alinéa de 1512 C.c.Q. , soit la nature de l’obligation, la situation des parties et toute circonstance appropriée [3] . [ 18 ] In this case, the evidence is scarce as to the financial situation of the parties. Mr.

Tellalian testified that he was now retired and in a difficult financial situation but he appears to have inherited from his mother and sold, for a few millions dollars, a parking lot on Crescent street. Mr. Tellalian is retired and in poor health since going through a heart surgery last summer. [ 19 ] Mr. Khoderian owns a jewellery store, but states that he has little left after paying his mortgage, alimony and a $ 500 instalment to Plaintiff. There is no evidence as to his other assets.

He seems to be willing to borrow money from a third party to reimburse the plaintiff. [ 20 ] Almost five years have gone by since the loan. Mr. Khoderian has made real efforts to reimburse the loan. He has paid some amount every month since 2015 and intends to reimburse the entire loan although he is not able to pay it in full for the moment. [ 21 ] The situation cannot be compared to the one in Fortin c. Roussel [4] where the Court set the term at the date of the judgment.

In that case, the evidence showed that the defendant had touched a substantial amount of money after selling some machinery and has chosen to reduce his mortgage and invest in his farm rather than to pay his debt to Mme Fortin. In the present case, the evidence shows that Mr. Khoderian took a higher mortgage on his property in order to pay $ 48 000 to Mr. Tellalian and that he never missed a payment since 2015. [ 22 ] The situation is also very different from the one in Richard c. Boucher [5] were the Court only gave a 30 days term. In that case, the Court considered that Boucher abused the gullibility of Mr.

Richard and he proceeded to get rid of his main asset, his house, for $ 1, without Mr. Richard’s knowledge. This element of bad faith justified setting a very short term. [ 23 ] Under the circumstances of the present case, considering the efforts and the willingness of Mr. Khoderian to pay his debt, the Court fixes a term at 6 months following the judgment rendered. This will allow Mr. Khoderian to obtain the money needed to pay the balance of the loan. This delay appears to be reasonable taking into account the situation of both parties [6] .

FOR THESE REASONS, THE COURT : GRANTS the originating application; FIXES the date for the repayment of the loan on October 25 th 2018; THE WHOLE with costs against the defendant. __________________________________ GENEVIÈVE COTNAM, J.C.Q. Me Tessa Roy-Hébert Peter Karavoulias avocats 4008, boul. Saint-Martin Ouest Laval (Québec) AH7T 1B8 Avocate de la

partie demanderesse Me Mélanie Zawahiri SM Avocats

2466. boul. Curé-Labelle, bur. 202 Laval (Québec) H7T 1R1 Avocat de la

partie défenderesse Date of hearing : April 18, 2018