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Tom B.
Tom B., Barrister & Solicitor
Category: Canada Law
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Experience:  25 years in practice
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I feel headache penalty charged and dispute by

Customer Question

Hello, I feel headache for a penalty charged and dispute by Monex Group.
Submitted: 1 year ago.
Category: Canada Law
Expert:  Debra replied 1 year ago.
I am not really understanding the facts. Please start at the beginning and explain what happened.
Customer: replied 1 year ago.
We signed contract in Oct. 13, 2011 and have two Merchant ID with Monex #4042226483 (Machine Account, Non-seasonal) &(###) ###-####(On-Line, Seasonal). Monex customer representative Aaron Sirtonski approved and processed our seasonal deactivation request to the non-seasonal account and promised without penalty by the end of March. In May, Monex charged $500.00 penalty from our BMO bank account. In June, we contacted Monex customer service but they refused to explain the penalty and transferred our case to Monex legal department Brian Griffiths. In July, We called Brian and explained and asked refund. Brain told us since we breached the Contract (deactivated a non-seasonal account) so we need to pay $500.00 every month per Contract since April). he refused refund to us. Then we went to BMO and filed a payment dispute and rejected Monex's penalty. 2 days later on July 13, Brian sent us an email as below:
Customer: replied 1 year ago.
MONEXgroup would like to advise you that payment on your merchant account is past due, and that a service fee of $500.00 was rejected by your bank on 2015-05-06 due to NO AGREEMENT EXISTED PDA/BDA.
The rejected payment, plus additional charges are now owing and due to MONEXgroup within 7 days. These include a return payment fee of $75 for each rejected payment, and a security deposit of $500 to reinstate service.
This payment can be made by credit card by calling 1(###) ###-####ext 230 or through a certified cheque or money order made payable to Money Express POS Solutions. To make a payment and avoid potential service interruptions or if you have any questions or concerns regarding this communication, please contact MONEXgroup at your earliest convenience at 1-***-***-****, ext. 230.
Customer: replied 1 year ago.
Our reply to his email is:
Please find attached Monex approved seasonal deactivation request (April~October). Monex Customer Service called me to disconnect the merchant machine around April 1st. Monex Customer Service stated a several of times that there would be no penalty for this deactivation. We followed all the instructions given by Monex Customer Service.
Please Monex Legal department and Monex Customer Service to communicate each other. We won't pay the penalty because Monex promised us there is no penalty for deactivation.
Customer: replied 1 year ago.
And Monex reply to our email is:
You have recently informed us of your intention to prematurely terminate your agreements with Money Express POS Solutions Inc. (“Monex”). We very much appreciate the opportunity you have given us to serve your business since October 2011 and we are disappointed you no longer wish to continue.
At this time, we would like to remind you of your obligations under the agreements you have signed, which have been attached for your convenience. Please review sections 6.01(term) & 8.02 that pertain to early termination. Please also note the personal guarantee that you have signed.
Per the above section of the agreement, the cost to cancel your agreement with MONEXgroup is $733.24 Payment of this amount is due July 27, 2015 and Interest collects at the rate of 28.8% per annum calculated daily on all outstanding balances.. Payment can be made by way of Visa, MasterCard, Amex, Certified Cheque or bank draft payable to Money Express POS Solutions Inc and sent to the attention of the undersigned.
If you are unable to comply with the terms as set out above MONEXgroup may choose to proceed with legal action in order to secure the balance owing. We have the legal right and obligation to enforce our agreements in order to protect our business and our employees. We are a small Canadian business and certainly hope that you can relate.
Attached you will find;
· A copy of your contract and terms.
· A bill of sale and release to be signed and returned with payment to finalize the cancellation.
· If you have leased your terminal you will want to contact First Data Global leasing at 1(###) ###-####regarding leasing obligations.
Customer: replied 1 year ago.
We replied as below:
I have no intention and never informed Monex to early terminate the merchant agreement. I sent not-to-renew-contract request and seasonal deactivation request which were both approved by Monex group. And Monex also called me to disconnect the merchant machine and promised no penalty around April 1st. I disagree with early termination you proposed and the dollar amount you force us to pay.
If your customer service made a misleading and a mistake to instruct us deactivation the merchant service, please ask them to correct the mistake and re-active our machine and we will continue to pay the monthly fee until end of the contract. We shouldn't be punished because of your mistakes.
Customer: replied 1 year ago.
And their customer service response as below:
We disagree with your assertion that you were in any way, shape or form mislead by anyone in Customer Service or at Monex. On June. 19th 2015 you spoke with our CS Supervisor and it was revealed that you had not had a show in 2 years and have not processed any actual transactions since that time. In an attempt to circumvent the system, you put through illegitimate $1.00 transactions each month to make it appear that you were processing.
These are not actual transactions, as required by the terms and conditions of your agreement. You had advised the Supervisor at this time that you were doing so to avoid paying early termination fees required by your existing service agreement.
You have failed to fulfill the contractual obligations of your service agreement with Monex for the past two years and have mislead Monex agents about your true intentions, which was to avoid paying early termination fees. Your business is neither a seasonal business as you stated nor is it active for you to continue processing.
Please ensure that all further correspondence is directed to our legal department at***@******.***
Customer: replied 1 year ago.
Our response as below:
Customer Service,
We were instructed by your legal department doing the transaction monthly to make the merchant active. We are a not-for-profit organization and we ended our business 2 years ago no income since then. The Shen Yun show artist denied to come to Alberta for performance since Alberta government installed an orchestra pit in the stage which can't be accepted by the artist. This is totally out of our control. Even though we had no income but we still paid monthly fee to Monex from our volunteer's pocket in order to fulfill the 48 months contract.
As the customer service, you truly mislead us to deactivate the machine without penalty. After you approved the deactivation, we still paid monthly fee to Monex, Elavon and first data rental fee. We only have 3 months away to end the contract. I'm willing to pay 3 months with regular payment until the end of contract.
Customer: replied 1 year ago.
And Monex response:
You have refused our demand for payment however should you change your mind and intend to reinstate service the balance due is $1075.00 includes $500 fee rejected by your bank on 2015-05-06 due to NO AGREEMENT EXISTED PDA/BDA. $75.00 rejected payment fee and $500 security deposit.
If you are unable to comply with the terms as set out above MONEXgroup may choose to proceed with legal action in order to secure the balance owing. We have the legal right and obligation to enforce our agreements in order to protect our business and our employees. We are a small Canadian business and certainly hope that you can relate.
Customer: replied 1 year ago.
So basically Monex gave us 2 options so far, one option is penalty to keep account alive, and another is early termination.
I have great concern about both options. So I called Brain to request more verification as below:
For option 1 (Penalty): I called Brian on July 14 and asked If we choose to pay &1075.00 penalty, can we get the machine activated right away in order to avoid further penalty? Brian said "I don't understand your question." and hung up the phone.
For option 2 (Final release), I sent an email on July 15 as below:
I have the following questions for the Final Release, please help to verify each of the items below.
1) The bill of sale and release made shall be the date of signature. Why it’s shown 2015-July-08?
2) Falun Dafa Association of Calgary existing shall be under laws of Alberta. Why it’s shown under Ontario?
3) We have two Merchant ID with Monex which are #4042226483 signed on 2011-Oct-13 and #1011001144 signed on 2011-Nov-14 and 2011-Nov-22 (with seasonal option added). They are all under invoice #44477 which will be all expired in 48 months until 2015-Oct-13. Why it’s only shown one Merchant ID #4042226483? Another merchant ID shall be added and all signed agreement shall be added too.
4) We have not stopped using the service of the Processor and not breached the terms and conditions of the merchant agreement. Monex approved our seasonal deactivation request and promised there is no penalty and called us to disconnect the machine with no transaction required around April 4th.
5) We need the breakdown list in detail of $733.24 to understand why we need to pay this amount.
6) Elavon told us they do not have any agreement with us, they only have agreement with Monex, please confirm.
7) We are forced to lead to this final release even though there is only 3 months away to the end of contract. The not-to-renew-contract letter was sent to Monex last year. We request to waive all termination fees to Monex, Chase, Elavon and Firstdata if we signed the final release. However, we agree to pay the outstanding monthly fee towards 2015-Oct-13.
Customer: replied 1 year ago.
Monex response on July 16 as below:
WITHOUT PREJUDICE
Shen Yun Show
Falundafa Association of Calgary
Monex is intent upon resolving the outstanding balance with or without your cooperation and may pursue the outstanding balance in Ontario Small claims court if not resolved voluntarily. You willfully defaulted on your payments to MONEXGroup and as such are now in a material breach of the terms. You have been offered the opportunity to reinstate services but have chosen to terminate instead as the cost is lower.
THE MERCHANT ACKNOWLEDGES HAVING READ AND UNDERSTOOD THIS AGREEMENT AND HAVING EITHER OBTAINED INDEPENDENT LEGAL ADVICE IN RELATION TO IT OR HAVING FREELY CHOSEN NOT TO DO SO.
Please govern yourself accordingly.
Customer: replied 1 year ago.
AND NOW... I'm writing this complaint to you. PLEASE HELP!!!
Monex never answered our question in written or tried resolve our dispute and complain. They only threaten us to go to court to ask money!
WHAT I AM GOING TO DO NEXT? Hire a lawyer? We are not-for Profit and already drained out by Monex. Could you contact me ASAP and tell me if you have a good solution to get away completely without penalty from Monex?
Thanks a LOT!
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call + Review Legal Documents. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Debra replied 1 year ago.
I cannot review legal documents nor can I speak to you on the phone as they rules of my law society don't allow that as you are not my client. I can read what you've written (I have so far read some of it) but it is the longest post I've ever received on this site, by far, to be honest. I can also opt out and see if another expert will take over and perhaps that expert can call you.
Customer: replied 1 year ago.
OK. Please switch to another expert.
Customer: replied 1 year ago.
Hi, When I can expect to type to another rlawyer?
Customer: replied 1 year ago.
Please help to find a Canadian Lawyer who expertise in Contract law and incorporation law. This is a contract conflict.
Customer: replied 1 year ago.
I am in Alberta Canada

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