Ashley Kandestin
Articles du même auteur
02 Avr 2015

Acting as “Prête-Nom” for a Debtor Does Not Automatically Render You Co-Debtor of a Loan

Par Ashley Kandestin, DeGrandpré Chait S.E.N.C.R.L/LLP

By Ashley Kandestin

Mitchell Gattuso

In Sarai c. Kaur, 2015 QCCS 1148, Mr. Sarai (the
“Plaintiff”) lent $140,000 to Mr. Singh for an alleged five-year term without
interest. Given that his bank had a 21-day freeze policy on deposits, Mr. Singh
had the loaned money transferred to his mother’s bank account, Mrs. Kaur, in order
to have quicker access to the money. Some 6 years later, the Plaintiff sued Mr.
Singh and Mrs. Kaur, alleging that they should be held jointly and severally liable
for the repayment of the $140,000 five-year term loan.

Granting Mrs. Kaur’s motion under 165 (4) of the Code of Civil Procedure, the Court
dismissed the Plaintiff’s action against her, despite the finding that
she may have acted as the “prête-nom” for her son. The Court noted that no
legal relationship existed between Mrs. Kaur and the Plaintiff given the lack
of evidence to the effect that Mrs. Kaur ever agreed to become a co-debtor with
her son, or a surety for his indebtedness.

The Court concluded that Mr. Singh was the sole debtor of the loan, finding
the Plaintiff’s allegation that Mr. Singh “told him that his mother would act
as “prête-nom” of her son with respect to the loan” (para. 10) was insufficient
to render Mrs. Kaur a co-debtor:

“[19] The Court finds, based on the allegations
of Plaintiff’s Motion, that Mrs. Kaur never borrowed the funds as acknowledged
by Plaintiff, who knew that she was only a “prête-nom” to enable her son to use
her bank account in order to obtain quick access to the proceeds of his
$140,000 loan.

[20] Under such particular circumstances, a
“prête-nom” does not automatically become a debtor. The disclosed purpose of
the “prête-nom” in this instance does not establish that Mrs. Kaur agreed to
become a co-debtor of her son’s indebtedness.

[21] Did she become a surety for her son’s indebtedness?
Absolutely not. Article 2335 of the Quebec Civil Code stipulates that “Suretyship
is not presumed; it is effected only if it is express.”

The Court therefore had no hesitation in dismissing the Plaintiff’s
claim, with costs, against Mrs. Kaur under article 165(4) CCP as it was
unfounded in law, even if the facts alleged were true.

To read this decision in its entirety, click here.

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