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Legal Blog
Prove It
Now and then, we get the “Prove it” defence. This is a defence in which the debtor asserts that the Visa or MasterCard account that they had used for years was debited incorrectly, say, six years ago and that the outstanding balance was comprised of improper six-year old charges. The debtor then sits back and tells us to prove the charges. The “Prove it” defence was used in Royal Bank of Canada v. Trentadue, a 2004 Ontario Superior Court of Justice decision.
Not Me
The Bank commenced its action in January 1998 on an outstanding Visa balance for $13,507. Coincidentally, the debtor alleged that the balance was wrong because it improperly posted charges between September 1996 and February 1997. Unfortunately, his defence made no mention of this allegation; it just baldly denied everything that the bank had alleged. The debtor did not actually make his allegation until 2002. By that time, the Bank had destroyed all transaction slips.
Upshot
The Bank argued that its cardholder agreement covered the situation. The agreement said that the debtor had to complain within 30 days of the statement or it was deemed to be correct. The debtor rebutted that he never received the agreement. The judge said, “I have not determined the Bank’s claim based on the 30—day limitation period for raising objections set out in the miniscule print of its cardholder agreement. The matter ultimately turned on credibility.”
Indeed, the action did turn on credibility. The Bank was able to introduce as evidence the log of its phone calls with the debtor. In each case, the debtor never complained about the impugned charges; he said that he was financially strapped. Further, many of the impugned charges were from a casino. The debtor admitted that he frequented the casino, but could not “recollect the charges.”
This and other goodies were just too much for the judge. The judge held that the debtor was not credible. There were too many inconsistencies in his statements. The judge held that the Bank had proved the debt, without the transaction slips.