- Royal Bank of Canada v. Skrapec, 2011 BCSC 1827: http://canlii.ca/t/fq9sc
The decision is a transcript of an oral judgment, and as reported has quite a number of interjections by Barry Skrapec. The net result is a little disjointed, so I am taking the liberty of rearranging its order.
Skrapec was initially a good customer who then fell behind in his payments (paras. 8-17), but after a balance of $31,868.0 was not paid for five months RBC sued to collect.
Skrapec’s response has many familiar elements. First, he adopted the double/split person concept that BARRY A. SKRAPEC and Barry A. Skrapec were two different entities, and the latter was “agent” or “representative” for the former: paras. 20, 32, 61, 67, 69-70, 77. The double person meme, however, does not appear to be directly relevant to how Skrapec sought to avoid his debt. It appears that Justice Powers did not directly challenge the irrelevancy of this double identity and agency, but instead seems to have assumed this was in part due to the manner in which the style of cause for the case was prepared: para. 18. I won’t comment further on the double/split Skrapec.
The primary thrust of Skrapec’s response is two fold. First, Skrapec claimed that the line of credit was not properly documented:
- para. 24: there was no:
para. 25: RBC did not prove they are:a certified true copy of a contract relating to the . . . account, showing proof that a true bill marked with value inked in blue upon its face and not a statement of the alleged owing or owed to the plaintiff.
para. 35:... the current holder in due course of an alleged original note of the unidentified aforementioned account.
It complains that the copy of the contract, the Royal credit line, is not the original, and asserts that the only contract in existence is that created by the documents that the defendant sent to the Royal Bank that I have referred to, and then cites a maxim of tacit consent, cited from Black's Law Dictionary, "He who does not deny admits". It also asserts that there is no proof of an alleged contract that has an amount owing, that nothing is due to the bank; there is no indebtedness to the bank, and states that it rebuts the claims of the Royal Bank.
RBC did not reply, and Skrapec sent the magic three “Notice of Default and Opportunity to Cure” and “Certificate of Dishonour” letters, and stated RBC was estopped from collecting its debt (paras. 34, 42)
Justice Powers is clearly aware that Skrapec was getting this stuff from somewhere, concluded that RBC had provided adequate evidence to establish the contract and that Skrapec’s foisted unilateral contract had no effect on the outstanding debt:NOTICE: ROYAL BANK OF CANADA shall have 10 days from the receipt of this certified letter to return all requests stipulated by agent Barry A Skrapec. Failure to return all requests by ROYAL BANK OF CANADA or its silence shall constitute Irrevocable Estoppel upon Failure to Produce Proof of Claim.
AND TAKE FURTHER NOTICE: An Irrevocable Estoppel created upon failure to Produce Proof of Claim or its non response by ROYAL BANK OF CANADA estops ROYAL BANK OF CANADA from all actions and or matters against the undersigned.
There is no requirement for RBC to provide the original of a loan, the bank’s records are enough proof of the contractual arrangement: paras. 47, 53. It was not up to the bank to provide an independent audit record, if Skrapec did not like the evidence he could do that himself: paras. 47, 54. Skrapec made the common argument that without the original contract there would be no defence for him in the event the debt had been transferred (para. 48). Last, there's mom:[44] I accept that Barry the man, who appears as agent for Barry A. Skrapec, is earnest in the claims that he puts forward, as is the defendant, and thinks somehow that they have some effect at law. They do not.
[45] Barry the man says that he is not familiar with legalese. He obviously does not understand the law. These documents were created in some fashion. He tells me that he spent a lot of time putting them together, but there is no foundation for them. A contract is not created by simply sending off a document to somebody by registered mail or otherwise, telling them that if they do not respond in a certain fashion, then they are estopped from responding in the future. There is no contract created by the documents that Barry A. Skrapec or Barry the man sent to the Royal Bank or its agents.
[46] In this case, the Royal Bank has the obligation of proving its claim. It has to prove its contract, the line of credit. It has to prove that on the balance of probabilities; in other words, that it is more likely than not that that contract existed. The contract was dated 1999, appears to be signed, or the copy of it appears to be a copy of document signed by Barry A. Skrapec.
…
[50] The primary defence that is raised is that somehow, by sending the correspondence that I have referred to off to the bank or its agents by registered mail, that somehow some new contract has been created or in some fashion the bank is prevented from pursuing its claims. There, what is referred to as law are merely definitions and cites from Black's Law Dictionary. Black's Law Dictionary is just that; it is not law itself. It may refer to maxims that are sometimes referred to, but it is not the law.
[51] The fact that a letter is sent to the bank, registered or otherwise, demanding that the bank prove its claim in a specific way, does not oblige them to do that. He might just as well have asked the bank officers to dress in some specific costume and march down the street, if in fact the debts were owed. It does not mean they are required to do it.
[52] It refers to a demand that a contract with seals on it be produced, a contract that was witnessed by other people. That is not necessary. The bank has to prove it had a contract with BARRY A. SKRAPEC, and that they advanced money pursuant to that contract. They have to prove that on the balance of probabilities. They have not produced the original contract, because they do not appear to be able to find it, but they certainly produced what they say is a true copy from their bank records, and I accept that it is.
…
[61] In other words, BARRY A. SKRAPEC does not come forward and say, "Oh no, I paid a different amount. I paid more than that. I paid it all." BARRY A. SKRAPEC, through his agent, Barry the man, simply says, "They did not respond to my demands that they do certain things in a certain way." They were not required to.
Justice Power correctly suspects an American connection to this scheme (paras. 62-63), particularly in light of the fact the Skrapec materials invoke U.S. legislation such as the U.C.C. (para. 38). While RBC sought solicitor and own client costs, these were denied but elevated costs were awarded: para. 76. In the post-Meads v. Meads context I suspect this case would have seen a solicitor and own client costs award.[49] Barry says that it is possible that this debt was paid by somebody else, perhaps BARRY A. SKRAPEC'S mother. Maybe she has the contract. There is no evidence of that. There is nothing to suggest that is even a possibility.
Barry does try to put in one last word:
RBC receives an award for the full amount, and a counterclaim based on the Skrapec fee schedule is rejected: paras. 74-75.[69] I accept that Barry the man and BARRY A. SKRAPEC have worked diligently at this. I suspect they have gotten some advice from somebody; they probably have followed some form of precedents that they may have seen somewhere. They may have gotten guidance from somebody. It is hard to tell.
[70] Some of the things pleaded and alleged are remarkably similar to other cases that have come before the court. Again, often by people representing themselves, people who have very strong beliefs about whether they are or whether they should be referred to by a name or as a flesh‑and‑blood individual, or other concepts, not dissimilar arguments to this. But again, there is no basis in law for them. Somebody has put together a mish‑mash of maxims and comments that have barely any logic to them.
[71] BARRY SKRAPEC: There's God's law, sir.
[72] THE COURT: Sometimes those people refer to God's law on the basis that somehow it puts them outside the laws of Canada.
[73] This is a simple case of where somebody borrowed money, they had the benefit of that contract, and they have not paid it back. There is no merit in the law to the defence. There is no merit in Canadian law, in common sense, in logic, or even morally. They agreed to do something they did not do. BARRY A. SKRAPEC owes the bank the money.
Skrapec’s subsequent appeal (Royal Bank of Canada v. Skrapec, 2012 BCCA 10: http://canlii.ca/t/fprkt) was denied:
As noted, this case is particularly helpful in a Canadian context because it parses out the very common debt neutralization scheme where the lender is served a foisted unilateral contract that sets terms for proof of the debt, there are a set of letters that 'crystallize' the foisted agreement in the debtor's favour, and then the debtor attempts to enforce that ‘contract’ in court to estop debt collection.[9] On this appeal the defendant has not identified any arguable issue or ground of appeal on which the judgment appealed from could be varied or set aside. To permit any further steps to be taken in the appeal would be to countenance an abuse of the Court’s process.
I have tried to learn more about Skrapec, without success. He is not apparently affiliated with any known Freeman or Sovereign groups.
What I did discover via an obituary is that Skrapec’s sister, Candice Skrapec, is a noted criminologist who specializes in the study and interview of serial killers, including none other than Charles Manson! I suspect it would be very interesting to hear her perspective on her brother’s litigation and just how he had become enmeshed with these ideas.
SMS Möwe
