Difference between revisions of "Enforcement of a Small Claims Judgment (20:XVII)"
Jump to navigation
Jump to search
| Line 17: | Line 17: | ||
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. (''Carter v Ghanbari'', 2010 BCPC 266; ''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 | 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. | ||
== B. Order for Seizure and Sale == | == B. Order for Seizure and Sale == | ||
| Line 37: | Line 37: | ||
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, he or she must pay the amount owed into court. All money paid into court is held until further order of the court. | 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, he or she 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, | 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.”. | ||
== D. Payment Hearing == | == D. Payment Hearing == | ||
| Line 73: | Line 73: | ||
If a person files a consumer proposal or becomes bankrupt, the law automatically puts in place a “stay of proceedings”. With a few exceptions, a stay prevents any legal action from being commenced or continued against bankrupt. The person’s trustee will send legal notice of the stay to any person or business currently engaged in legal action against the person declaring bankruptcy. The stay is also sent to the Court that is handling the person’s legal action and if a creditor has already obtained a judgment against the person, a copy is sent to debtor’s employer as well to stop the garnishee. | If a person files a consumer proposal or becomes bankrupt, the law automatically puts in place a “stay of proceedings”. With a few exceptions, a stay prevents any legal action from being commenced or continued against bankrupt. The person’s trustee will send legal notice of the stay to any person or business currently engaged in legal action against the person declaring bankruptcy. The stay is also sent to the Court that is handling the person’s legal action and if a creditor has already obtained a judgment against the person, a copy is sent to debtor’s employer as well to stop the garnishee. | ||
The Stay of Proceedings is only effective against debts that are dischargeable (i.e., can be eliminated) by bankruptcy law. Things like child support, spousal support, restitution orders, repayment of debts based on fraud or misrepresentation and some others are not stopped by a stay. A complete list of the debts can be found under | The Stay of Proceedings is only effective against debts that are dischargeable (i.e., can be eliminated) by bankruptcy law. Things like child support, spousal support, restitution orders, repayment of debts based on fraud or misrepresentation and some others are not stopped by a stay. A complete list of the debts can be found under the Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 178. | ||
There are ways for creditors to circumvent a Stay of Proceedings. However, clients with a judgment awarded in Small Claims Court are advised to speak with a trustee and discuss the mechanism of submitting a proof of claim. This form must be filled out to share in the dividends and vote at the first meeting of creditors (if one is held). The form contains the name of the creditor and the bankrupt and the nature and amount of the claim, as well as other information. A list of instructions is usually included. You must attach a Statement of Account providing the details of the claim along with supporting documents or other evidence that establishes the validity of your claim. | There are ways for creditors to circumvent a Stay of Proceedings. However, clients with a judgment awarded in Small Claims Court are advised to speak with a trustee and discuss the mechanism of submitting a proof of claim. This form must be filled out to share in the dividends and vote at the first meeting of creditors (if one is held). The form contains the name of the creditor and the bankrupt and the nature and amount of the claim, as well as other information. A list of instructions is usually included. You must attach a Statement of Account providing the details of the claim along with supporting documents or other evidence that establishes the validity of your claim. | ||