Sadly the debt is still too fresh for you to rely on the Statute of limitation, however your lawyer is absolutely right.
If they can not produce the signed application by you, then they can not prove to the judge who owns the debt and their claim must fail.

For your sake I hope you are 102% sure you never signed the credit app that may magically appear.

Last Payment was made in October 2009. EX never made the consumer proposal and is in default of all his credit cards

Lets assume for sake of argument you did sign....when was last payment made or when did ex make consumer proposal?

The summary judgement date is in December. I never signed any application for RBC Visa. My lawyer is saying that I have a good chance of winning the case against RBC since they cannot produce any document showing I have signed as a co-applicant. It seems very suspicious that RBC has lost the original application which my husband ay have signed. We got the card in 2001 and why they could not maintain the record? On the other hand they did not lose the written document of Patricia's signature.

So what happened in court in May 2012?

Forgot to mention: RBC collection contacted me in September 2011 and took me to the court in May 2012,

RBC is suing me on the visa in the court. I asked for the original written agreement but they are saying that the original written document is lost.

I told them that I was an authorized user not the Co-applicant.
Since I lived in Manitoba, the Consumer Protection Act says

"No issuance of unsolicited credit cards

35.4(1) No person shall issue a credit card to a person who has not applied for it, unless the card is being issued under a credit agreement to renew or replace a card previously issued under that agreement.

Onus of proof

35.4(2) The onus of proving that the person applied for a credit card is on the person who issued the card.

Also, the CPA Manitoba cleary states:
Penalty for wrongful collection

101(1) Where a collection agent, or a creditor, or any other person, charges a debtor with any amount that is not rightfully collectable from the debtor by reason of any provision of section 98, the debtor may

(a) if the amount has been paid by the debtor, recover from the creditor an amount equal to three times the amount of the charge as a debt due to the debtor; or

(b) if the amount has not been paid or partly paid, set-off an amount equal to three times the amount of the charges against the amount rightfully owing to the creditor and, if the amount of the set-off is greater than the amount rightfully owing, recover the excess from the creditor as a debt due to the debtor.

In Manitoba, an attempt to collect money from someone who is not liable will let them claim three times the amount of the charges.

Since RBC is suing me for $20,000 therefore I am counterclaiming in the court $60,000 from RBC.

Let's see what happen.

I never asked for the written statement prior to 2005.

What is your situation? When did the collection agency contact you and how long after that did RBC take you to court?

I am in a similar situation. I thought I was an authorized user on the RBC visa which we got in 2002. However, RBC told me that I am co-applicant and suing me in a court. When I demanded the original written agreement, RBC said that they have destroyed the original written agreement prior to 2005.

Did RBC supplied you the written agreement prior to 2005?

Billy

Thank you for your quick response.

I have reviewed all the posts on this topic and studied them in detail. Based on the information that you have obtained, it is still unclear as to the legal status of this account. Here is a summary of the facts that have been presented.

1. You obtained a copy of your credit application and it clearly shows that you signed the application as an "additional cardholder" or as a "co-applicant". This would seem to suggest that you are a joint owner of this account. However, the terms "additional cardholder" or "co-applicant" are not defined in the RBC Royal Bank Visa Agreement.

A review of a current RBC Royal Bank Visa Agreement reads as follows:

"When this agreement refers to "you" or "your", it includes each person who signed or submitted the Visa Card Application. whose name is on the Visa account or to whom the Visa Card has been issued other than an Authorized User. If this includes more than one person, "you" means each one of you. All of you are, individually and together, responsible under and bound by this Agreement. This means that each one of you is fully responsible for amounts owing on the Visa Account, irrespective of which one of you incurred any particular charge.

"You" and "your" do not include Authorized Users unless otherwise indicated. An "Authorized User" is a person to whom we have issued a Visa Card on your Visa Account at your request. The terms under which we will issue a Visa Card to an Authorized User are set out in the Authorized User section of this Agreement. While your Authorized User will have the same ability to charge transactions to your Visa Account as you do, you will be responsible for all amounts owing on your Visa Account, including those incurred by Authorized Users. You are also responsible for ensuring that all of your Authorized Users comply with the applicable terms and conditions of this Agreement."

Under the Authorized User provisions of the Agreement, it reads as follows:

"An Authorized User is a person to whom we have issued a Visa Card on your Visa Account at your request. You can add or remove Authorized Users by contacting us, though we may limit the number of Authorized Users on the Visa Account.

Authorized Users have the same ability to charge transactions to your Visa Account as you do. However, they have no responsibiity to us for any amounts owing for purchases, cash advances, fees and interest on the Visa Account. If an Authorized User is responsible to you for any of these amounts, you will need to make your own arrangements with the Authorized User for repayment.

It is your responsibility to ensure that each Authorized User receives a copy of this Agreement and any replacements or amendments to this Agreement, as well as any notices that affect the use of a Visa Card or a Visa Account.

We may assign individual card limits ( up to your current credit limit ) to each Authorized User. The card limit is the maximum amount that can be charged to an Authorized User Card each month. This option is not avilable for all Visa Card types and is subject to additional terms as set out when you enroll.

By signing, using or activating a Visa Card in his or her name, an Authorized User agrees to be bound by all of the terms and conditions of this Agreement except that an Authorized User will not be responsible to us for the payment of any amounts owing in respect of purchases, cash advances, fees or interest on the Visa Account."

This last paragaph seems to suggest that one can become an Authorized User by signing a form but does not indicate which form it refers to. Does this include an application form for a credit card? Or does this mean signing the reverse side of a credit card? Once again, the wording is unclear. It also seems to suggest that by merely using or activating a Visa Card is sufficient to become an Authorized User.

In my view, it would seem to indicate that one can become an Authorized User without signing any documentation. The original applicant would simply have to supply the name of an Authorized User to the credit card issuer in order for the Authorized User to receive a Visa Card. The Authorized User is not entitled to receive a copy of the RBC Royal Bank Visa Agreement. It would be the responsibility of the applicant to inform or supply the Authorized User with a copy of the Agreement. In addition, the credit card issuer is not required to send a copy of the monthly statement to an Authorized User.

By signing the credit card application, it suggests that you are a co-applicant on this RBC Visa Card and not an Authorized User. That means that both you and your ex-husband are equally responsible for any balance remaining on the card regardless of who incurred the charges.

2. You indicated in a previous post that the last time you made a payment on this Card was in 2007. What you didn't indicate was when was the last time that any payment was made on this Card or a signed written acknowledgment of the debt. That includes any payment made or signed written acknowledgment of the debt made by your ex-husband. Without knowing this information, it is impossible to determine if this debt is statute-barred. In Ontario, under the Limitations Act, 2002, a debt becomes statute-barred after 2 years when the debt first went into default, providing no payments have been made or signed written acknowledgments have been made within that 2 year period. Any payment made or signed written acknowledgment made within that 2 year period will extend the limitation period a further 2 years.

3. When you were divorced in 2007, you did not indicate if this RBC Visa Account was provided for in the Divorce Agreement. If this Account was a joint Account, surely, this Account should have been addressed. If it was addressed and your ex-husband agreed to be responsible for any balance owing and this was clearly stated in the Divorce Agreement, as a co-applicant of this Visa Card, you are equally responsible for this Account should your ex-husband refuse to honour his responsibility to pay the balance on this Account because RBC Visa is not a signatory to the Divorce Agreement. Therefore, whether this debt was addressed or not in the Divorce Agreement, you are still responsible for this debt.

4. When your ex-husband filed a Consumer Proposal, all debts MUST be included in the Proposal, even if the debt is statute-barred and is jointly owned. Under a normal Proposal when debts are individually owned, the accrual of interest stops. But in the case of joint debts where only one party has made a Consumer Proposal, the debt will continue to accrue interest because the party who did not make a Consumer Proposal is still responsible for the debt and the freezing of interest does not apply.

5. You did not indicate in any of your posts the date when you made an application for a RBC Visa Card. Without that information, it is impossible to tell whether RBC Visa made an inquiry on your signed application unless you have retained copies of your Credit Reports since the application was made. Equifax and TransUnion purge all inquiries ( hard ) 3 and 6 years respectively from the date of the inquiry. In addition, as a co-applicant for a RBC Visa Card, this "Trade" account should be shown on your Credit Report. And if it has gone into collection, it should also be shown as a "Collection" account. You indicated in a previous post that after revewing both your Equifax and TransUnion Credit Reports, this debt did not appear. You further indicated that you made a last payment on this debt in 2007. But the real question to be asked is when did this debt ORIGINALLY go into default? Both Equifax and TransUnion purge all debts 6 years from the "Original Date of Default with the Original Creditor" not from when you made your last payment. If this debt originally went into default prior to 2007, this could possibly explain why this debt does not show on your Credit Report either as a "Trade" account or a "Collection" account. Of course, I am only speculating here as you did not indicate if this debt went into default prior to your last payment.

After an exhaustive review of your situation as you have presented the facts, you are faced with 2 options. You can make arrangements with the collection agency, MJR, to pay the balance owing on this account. Or you can write a letter to MJR that I detailed in my post of June 20, 2012. By writing this letter, you will bring this matter to a "head". Either MJR will cease all further communication with you or they will litigate this claim by isssuing a "Statement of Claim". The choice is up to you.

----------------------------------------------------------------------------------------------------------
Educating one Consumer at a time