2016 QCCQ 6092, 2016 QCCQ 6092

Villapando c. Leduc 2016 QCCQ 6092 COURT OF QUEBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division» No: 500-32-146073-152 DATE: April 1, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ RAYMOND VILLAPANDO and MERLIN APUYA Plaintiffs v.

ADRIEN LEDUC and BANQUE DE MONTRÉAL Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Raymond Villapando and Merlin Apuya (Mr. Villapando and Mrs. Apuya) are claiming $5,864.54 from the notary Adrien Leduc (the Notary) and Banque de Montréal (BDM) representing part of the prepayment charge ( the Prepayment Charge ) for the payoff of their mortgage when they sold their property. [ 2 ] The Notary denies owing any amount to Mr. Villapando and Mrs.

Apuya, explaining that he had nothing to do with the Prepayment Charge calculations by BDM. [ 3 ] The Court specifies that BDM was absent at trial, notwithstanding its defense filed on April 17, 2015 and the notice of the hearing duly sent to it on December 22, 2015. BDM was called at the date of the hearing, to no avail. CONTEXT AND ANALYSIS [ 4 ] In 2013, Mr. Villapando and Mrs. Apuya considered selling their property. [ 5 ] On December 23, 2013, they obtained from BDM the costs of the Prepayment Charge, set by BDM at $4,117.61 [1] . [ 6 ] Mr. Villapando and Mrs.

Apuya decided to wait. [ 7 ] During the Fall of 2014, Mr. Villapando and Mrs. Apuya put their property up for sale. [ 8 ] On November 13, 2014 [2] , the Notary wrote to BDM regarding the discharge of the mortgage registered against the property. [ 9 ] On the same day, BDM issued a new calculation mentioning that $8,258.07 [3] was due as the Prepayment Charge. [ 10 ] On November 26, 2014, the Notary issued the « mémoire de débours et mémoire d’ajustement » [4] and the next day, the deed of sale was executed. [ 11 ] The mortgage was to be reimbursed on December 1, 2014.

However, BDM refused the payment as calculated by the Notary. The litigious difference regarded the Prepayment Charge [5] . [ 12 ] On that same day [6] , BDM issued a Statement of Mortgage Account for Payoff Purposes indicating that the new Prepayment Charge was $14,122.61. No explanations were provided by BDM to explain the difference. [ 13 ] On December 23, 2014 [7] , the Notary wrote to BDM on behalf of Mr. Villapando and Mrs. Apuya requesting an explanation for the increase of the Prepayment Charge from $8,258.07 to $14,122.61. His request remained unanswered. [ 14 ] On February 15, 2015 [8] , Mr.

Villapando and Mrs. Apuya sent a letter of demand to the Notary linking the increase of the

Prepayment Charge to his delay to finalize the sale. [ 15 ] Mr. Villapando and Mrs. Apuya were shocked by the increase of the Prepayment Charge over such a short period of time.

However, they had no choice but to pay the amount of $14,122.61 claimed by BDM, failing which BDM would have refused to provide the release of the mortgage preventing them to finalize the sale of their property [9] . [ 16 ] At the hearing, no explanations were provided to the Court as to the Prepayment Charge increase from $4,117.61 [10] to $8,258.07, 11 months apart and then, from $8,258.07 to $14,122.61, within 18 days. [ 17 ] One could expect that with time, the Prepayment Charge should rather decrease. [ 18 ] The Court concludes that Mr. Villapando and Mrs.

Apuya should have been able to rely on BDM for an accurate calculation of their Prepayment Charge when they requested it. [ 19 ] On November 13, 2014, Mr. Villapando and Mrs. Apuya had no reasons not to trust BDM for its calculation set at $8,258.07. Certainly, that answer provided by BDM could have had an influence on their decision to proceed to the sale. [ 20 ] Prior to providing the information requested, BDM should have verified its calculation and provided a figure on which Mr. Villapando and Mrs. Apuya could rely, knowing very well that they were selling their property. [ 21 ] The Court concludes that Mr.

Villapando and Mrs. Apuya should have been able to rely on BDM for an accurate calculation of their Prepayment Charge when they requested it. [ 22 ] BDM is at fault for misleading Mr. Villapando and Mrs. Apuya with escalating Prepayment Charges. [ 23 ] Mr. Villapando and Mrs. Apuya were justified in proceeding to the sale assuming that they would reimburse BDM for a Prepayment Charge of $8,258.07. [ 24 ] Consequently, Mr. Villapando and Mrs.

Apuya are justified in obtaining from BDM the reimbursement of the difference of $5,864.54. [ 25 ] Regarding the claim against the Notary, to have the Court conclude that he is liable, Mr. Villapandos and Mrs. Apuya would have to establish a fault, the damages and the causal link between them. [ 26 ] Hence, the Notary cannot be held liable for the calculation of the Prepayment Charges as BDM was the one responsible for it. [ 27 ] Mr. Villapando and Mrs. Apuya failed to establish the negligence of the Notary.

FOR THOSE REASONS, THE COURT: GRANTS the action of Plaintiffs Raymond Villapando and Merlin Apuya; CONDEMNS Defendant Banque de Montréal to pay $5,864.54 to Plaintiffs Raymond Villapando and Merlin Apuya, plus the interest at the legal rate of 5 % per annum and the additional indemnity provided at

article 1619 C.C.Q., calculated as of December 23, 2014; CONDEMNS Defendant Banque de Montréal to pay the judicial costs of $171 to Plaintiffs Raymond Villapando and Merlin Apuya; DISMISSES the action of Plaintiffs Raymond Villapando and Merlin Apuya against Defendant Adrien Leduc, without legal costs. __________________________________ DOMINIQUE VÉZINA , J.C.Q. Date of trial: February 8, 2016