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Difference between revisions of "Enforcement of a Small Claims Judgment (20:XVII)"
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Enforcement of a Small Claims Judgment (20:XVII) (view source)
Revision as of 04:56, 17 August 2020
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'''If the debtor defaults on the payment schedule, the balance becomes due immediately and the creditor may then take other steps to collect the balance''' (Rule 11(14). | '''If the debtor defaults on the payment schedule, the balance becomes due immediately and the creditor may then take other steps to collect the balance''' (Rule 11(14). | ||
The Small Claims Court may be '''unable''' to enforce a mediation agreement if doing so would exceed its jurisdiction. Other mediation agreements and the decisions of adjudicators in simplified trials can be enforced. (''Carter v Ghanbari'', 2010 BCPC 266; ''Wood v Wong'', 2011 BCSC 794). | The Small Claims Court may be '''unable''' to enforce a mediation agreement if doing so would exceed its jurisdiction. Other mediation agreements and the decisions of adjudicators in simplified trials can be enforced. (''[http://canlii.ca/t/2d6vb Carter v Ghanbari]'', 2010 BCPC 266; ''[http://canlii.ca/t/flxlq Wood v Wong]'', 2011 BCSC 794). | ||
It may not be possible to enforce a judgment against a debtor who has discharged the judgment debt in bankruptcy. A judgment creditor who learns that a judgment debtor plans to file for bankruptcy should review the ''Bankruptcy and Insolvency Act'', RSC 1985, c B-3, s 178 and obtain independent legal advice. | It may not be possible to enforce a judgment against a debtor who has discharged the judgment debt in bankruptcy. A judgment creditor who learns that a judgment debtor plans to file for bankruptcy should review the ''Bankruptcy and Insolvency Act'', RSC 1985, c B-3, s 178 and obtain independent legal advice. | ||
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The creditor must also fill out a garnishing order identifying the garnishee (the bank or the employer) with its full legal name and address. In the case of a bank, the specific branch must be identified and must be located in British Columbia. The garnishee will pay the entire amount it owes the debtor (i.e., the positive balance in a bank account). The garnishing order does not freeze the account; the claimant may re-garnish the bank at any time. | The creditor must also fill out a garnishing order identifying the garnishee (the bank or the employer) with its full legal name and address. In the case of a bank, the specific branch must be identified and must be located in British Columbia. The garnishee will pay the entire amount it owes the debtor (i.e., the positive balance in a bank account). The garnishing order does not freeze the account; the claimant may re-garnish the bank at any time. | ||
Once the creditor receives a garnishing order, | Once the creditor receives a garnishing order, they must serve both the garnishee and the debtor either personally, or by registered mail. | ||
Once an order for garnished wages is served on the garnishee, the order is only valid for wages due and owing within '''seven''' days (see ''Court Order Enforcement Act'', RSBC 1996, c 78, s 1) – it is therefore critical to have some knowledge relating to the debtor’s pay schedule. If the garnishee owes money to the debtor, | Once an order for garnished wages is served on the garnishee, the order is only valid for wages due and owing within '''seven''' days (see ''Court Order Enforcement Act'', RSBC 1996, c 78, s 1) – it is therefore critical to have some knowledge relating to the debtor’s pay schedule. If the garnishee owes money to the debtor, they must pay the amount owed into court. All money paid into court is held until further order of the court. | ||
A creditor may apply for the garnishment of a debtor’s bank account and accounts receivable '''before''' a judgment is reached. This is called a pre-judgment garnishing order. For more information, see Section III.B.4.: “Garnishment of Bank Accounts and Other Accounts Receivable in Chapter 10: Creditors’ Remedies and Debtors’ Assistance.”. | A creditor may apply for the garnishment of a debtor’s bank account and accounts receivable '''before''' a judgment is reached. This is called a pre-judgment garnishing order. For more information, see Section III.B.4.: “Garnishment of Bank Accounts and Other Accounts Receivable in Chapter 10: Creditors’ Remedies and Debtors’ Assistance.”. | ||
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== D. Payment Hearing == | == D. Payment Hearing == | ||
A payment hearing may be scheduled before a judge or justice of the peace (Rule 12). It will determine the debtor’s ability to pay and whether a payment schedule should be ordered (Rule 12(1)). Such a hearing may be requested by a creditor or debtor or ordered by a judge (Rule 12(2)). However, if a creditor has an order for seizure and sale, | A payment hearing may be scheduled before a judge or justice of the peace (Rule 12). It will determine the debtor’s ability to pay and whether a payment schedule should be ordered (Rule 12(1)). Such a hearing may be requested by a creditor or debtor or ordered by a judge (Rule 12(2)). However, if a creditor has an order for seizure and sale, they must get the permission of a judge to also have a payment hearing. The debtor must bring records and evidence of income and assets, debts owed to and by the debtor, any assets the debtor has disposed of since the claim arose, and the means that the debtor has, or may have in the future, of paying the judgment (Rule 12(12). Costs to the applicant in such a proceeding are added onto the sum of the judgment. | ||
A creditor who requests a hearing must file Form 12: Summons to a Payment Hearing. The registry will set a date on the form and the person named in the summons must be served '''personally''' at least seven days before the date of the hearing (Rules 12(7) and 18(12)(b)); service by mail is not permitted. | A creditor who requests a hearing must file Form 12: Summons to a Payment Hearing. The registry will set a date on the form and the person named in the summons must be served '''personally''' at least seven days before the date of the hearing (Rules 12(7) and 18(12)(b)); service by mail is not permitted. | ||
If the debtor is having difficulty paying, | If the debtor is having difficulty paying, they can request a hearing by filing Form 13: Notice of Payment Hearing which must be served on the creditor at least seven days before the date of the hearing, but may be served by regular mail as long as it is mailed at least 21 days in advance of the hearing date (Rules 12(11),18(12)(b), and 18(13)). | ||
If a person who was properly summoned or ordered by the court to attend a payment hearing does not attend, the creditor may ask that the judge or justice of the peace issue a warrant (Form 9) to arrest that person (Rule 12(15)). | If a person who was properly summoned or ordered by the court to attend a payment hearing does not attend, the creditor may ask that the judge or justice of the peace issue a warrant (Form 9) to arrest that person (Rule 12(15)). | ||
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Under the Civil Resolution Tribunal Act, section 58.1, a CRT order may be enforced by filing it in the BC Provincial Court. This can be done if a party has either a consent resolution order, or a final decision. The BC Provincial Court must be provided with a validated copy of the order. A validated copy of a CRT order is sent with the CRT decision. The CRT will not provide parties with a validated small claims order until the time limit for making a Notice of Objection has expired. Once a small claims order is received, it can be filed immediately. | Under the Civil Resolution Tribunal Act, section 58.1, a CRT order may be enforced by filing it in the BC Provincial Court. This can be done if a party has either a consent resolution order, or a final decision. The BC Provincial Court must be provided with a validated copy of the order. A validated copy of a CRT order is sent with the CRT decision. The CRT will not provide parties with a validated small claims order until the time limit for making a Notice of Objection has expired. Once a small claims order is received, it can be filed immediately. | ||
When a CRT order is filed with the BC Provincial Court, it has the same force and effect as if it were a judgment of the BC Provincial Court. The enforcement procedures are within the Court’s jurisdiction. | When a CRT order is filed with the BC Provincial Court, it has the same force and effect as if it were a judgment of the BC Provincial Court. The enforcement procedures are within the Court’s jurisdiction. That is, the CRT has no powers of enforcement for its own orders, or for orders from other tribunals such as the Residential Tenancy Branch. | ||
{{REVIEWED LSLAP | date= August 16, 2020}} | |||
{{LSLAP Manual Navbox|type=chapters15-22}} | {{LSLAP Manual Navbox|type=chapters15-22}} | ||
