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Difference between revisions of "Introduction to Debtors' Options (10:IV)"
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Introduction to Debtors' Options (10:IV) (view source)
Revision as of 18:08, 8 August 2023
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'''For pre-judgment orders only:''' | '''For pre-judgment orders only:''' | ||
# | #The strengths and weaknesses of the defendant’s defence to the claim. | ||
'''For both pre and post-judgment orders:''' | '''For both pre and post-judgment orders:''' | ||
# | #Whether the judgment leaves the debtor with an inordinately low cash flow; | ||
# | #Whether there is a risk that the grant or continuance of the order will cause an injustice to the debtor; | ||
# | #Whether there is a possibility of abuse of process by the creditor; and | ||
# | #Whether the garnishment of certain payments, such as social assistance benefits, run counter to public policy | ||
Furthermore, ss 3(5) and 4(4) of the ''COEA'' describes the limits to which a debtor’s wages may be garnished. Thus, if a debtor has a low income or has savings they depend on for the necessities of life, they can have the amount that is being garnished (or proposed to be garnished) reduced, the terms of the order varied, or the garnishment ended. A person who is subject to a Notice of Attachment under the Family Maintenance Enforcement Program can also try to have the amount that is being ‘garnished’ reduced. Additionally, a garnishing order from a civil action has to be renewed monthly, while a garnishing orderfor maintenance does not. | Furthermore, ss 3(5) and 4(4) of the ''COEA'' describes the limits to which a debtor’s wages may be garnished. Thus, if a debtor has a low income or has savings they depend on for the necessities of life, they can have the amount that is being garnished (or proposed to be garnished) reduced, the terms of the order varied, or the garnishment ended. A person who is subject to a Notice of Attachment under the Family Maintenance Enforcement Program can also try to have the amount that is being ‘garnished’ reduced. Additionally, a garnishing order from a civil action has to be renewed monthly, while a garnishing orderfor maintenance does not. | ||
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A collector must not communicate with a debtor, a member of the debtor’s family, a relative, a neighbour or the debtor’s employer in a manner or with a frequency as to constitute harassment. The following constitutes harassment: | A collector must not communicate with a debtor, a member of the debtor’s family, a relative, a neighbour or the debtor’s employer in a manner or with a frequency as to constitute harassment. The following constitutes harassment: | ||
:a) | :a) Using threatening, profane, intimidating or coercive language; | ||
:b) | :b) Exerting undue, excessive or unreasonable pressure; and/or | ||
:c) | :c) Publishing or threatening to publish a debtor's failure to pay (''BPCPA'', s.114). | ||
A collector cannot communicate with a debtor at the debtor’s place of employment unless one of the following conditions is met: | A collector cannot communicate with a debtor at the debtor’s place of employment unless one of the following conditions is met: | ||
:a) | :a) The collector does not have the home address or telephone number for the debtor and the collector contacts the debtor solely for the purpose of requesting the debtor's home address or telephone number or both; | ||
:b) | :b) The collector has attempted to contact the debtor at the debtor’s home address or telephone number, but the collector has not contacted the debtor in any of these attempts (the collector is limited to one verbal attempt at the debtor’s place of employment (s 116(2)), meaning one call even if the debtor doesn’t answer or hangs up); or | ||
:c) | :c) The collector has been authorized by the debtor to communicate with the debtor at the debtor’s place of employment (s 116 (1)). | ||
When the collector is contacting the debtor, they must indicate the name of the creditor with whom the debt was incurred, the amount of the debt, and the identity and authority of the collector to collect the debt from the debtor (s 116 (3)). | When the collector is contacting the debtor, they must indicate the name of the creditor with whom the debt was incurred, the amount of the debt, and the identity and authority of the collector to collect the debt from the debtor (s 116 (3)). | ||
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Under s 122, no collector, whether on their own behalf or on behalf of another, directly, indirectly, or through others, shall: | Under s 122, no collector, whether on their own behalf or on behalf of another, directly, indirectly, or through others, shall: | ||
:a) | :a) Unless there is a court order to the contrary, remove from the debtor’s private dwelling any personal property claimed under seizure, distress, or repossession, in the absence of the debtor, the debtor’s spouse, the debtor’s agent, or an adult resident in the debtor’s dwelling; | ||
:b) | :b) Seize, repossess or levy distress against any chattel not specifically charged or mortgaged, or to which legal claim may not be made under a statute, court judgment, or court order; or | ||
:c) | :c) Remove, seize, repossess, or levy distress against any chattel during a day or during the hours of a day when such removal, seizure, repossession or distress is prohibited by regulations under this Act. | ||
=== 3. Consequences of Contravention of the Business Practices and Consumer Protection Act === | === 3. Consequences of Contravention of the Business Practices and Consumer Protection Act === | ||
Where there is evidence of misconduct by the debt collector, the Director may suspend, cancel, or refuse to issue their licence (s 146(1)). Such conduct includes (s 146(2)): | Where there is evidence of misconduct by the debt collector, the Director may suspend, cancel, or refuse to issue their licence (s 146(1)). Such conduct includes (s 146(2)): | ||
:a) | :a) Contravening this Act or regulations; | ||
:b) | :b) Failing to meet the minimum requirements for a licence; | ||
:c) | :c) Contravening a condition of a license; | ||
:d) | :d) Engaging in a pattern of conduct by the debt collector that shows that they are unfit to have a licence; or | ||
:e) | :e) Being convicted of an offence under Canadian law for conduct that shows they are unfit to have a licence. | ||
=== 4. Legal Advice for a Harassed Debtor === | === 4. Legal Advice for a Harassed Debtor === | ||
If there may be a violation of the ''Business Practices and Consumer Protection Act'', the debtor should do the following: | If there may be a violation of the ''Business Practices and Consumer Protection Act'', the debtor should do the following: | ||
:a) | :a) Find out the name of the collector and/or agency; | ||
:b) | :b) Record the exact words or practice followed by the debt collector or the agency; and | ||
:c) | :c) Detail the time and dates of the calls or visits. | ||
With the above information the debtor should contact Consumer Protection BC for the name of the complaints manager for the collection agency the debtor is dealing with. This complaints manager will work with the debtor to resolve the complaint, including disciplinary action, if appropriate. Their website is http://www.consumerprotectionbc.ca and includes resources regarding consumer and debtor rights, as well as dispute resolution. It also includes a form for registering a complaint with Consumer Protection BC. | With the above information the debtor should contact Consumer Protection BC for the name of the complaints manager for the collection agency the debtor is dealing with. This complaints manager will work with the debtor to resolve the complaint, including disciplinary action, if appropriate. Their website is http://www.consumerprotectionbc.ca and includes resources regarding consumer and debtor rights, as well as dispute resolution. It also includes a form for registering a complaint with Consumer Protection BC. | ||
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The ''Business Practices and Consumer Protection Act'' regulates the activities of the credit bureaus in order to minimize unfair treatment of the party seeking credit. Federal legislation, such as the ''Personal Information Protection and Electronic Documents Act'', SC 2000, c 5 [''PIPEDA''] and the ''Privacy Act'', RSC 1985, c P-21 also outline the requirements for organizations in their use, collection, and disclosure of personal information in their business practices. Credit information that these bureaus can disclose is the most common type of personal information, and includes one’s: | The ''Business Practices and Consumer Protection Act'' regulates the activities of the credit bureaus in order to minimize unfair treatment of the party seeking credit. Federal legislation, such as the ''Personal Information Protection and Electronic Documents Act'', SC 2000, c 5 [''PIPEDA''] and the ''Privacy Act'', RSC 1985, c P-21 also outline the requirements for organizations in their use, collection, and disclosure of personal information in their business practices. Credit information that these bureaus can disclose is the most common type of personal information, and includes one’s: | ||
:a) | :a) Name, date of birth and address; | ||
:b) | :b) Current and former marital status; | ||
:c) | :c) Current and former place of work; | ||
:d) | :d) Payment habits; and | ||
:e) | :e) Debts owing. | ||
'''A credit reporting agency cannot give out an individual’s personal credit report without that individual’s consent.''' When one seeks credit, they will be asked to consent to the lender obtaining a credit report or a credit check. (After consent is given, the lender can obtain a “soft check” periodically meaning they can view the report relating to their loans). | '''A credit reporting agency cannot give out an individual’s personal credit report without that individual’s consent.''' When one seeks credit, they will be asked to consent to the lender obtaining a credit report or a credit check. (After consent is given, the lender can obtain a “soft check” periodically meaning they can view the report relating to their loans). | ||
