Anonymous

Difference between revisions of "Getting Your Judgment Paid"

From Clicklaw Wikibooks
no edit summary
Line 1: Line 1:
{{Dial-A-Law Blurb}}
{{Dial-A-Law Blurb}}
{{Dial-A-Law TOC|expanded = smallclaims}}
{{Dial-A-Law TOC|expanded = smallclaims}}
If you take someone to court and the judge decides in your favour, it’s up to you to collect the money. Learn your options for getting your court judgment paid.


Winning in small claims court does not guarantee you will be paid. What can you do if the person you sued refuses to pay you? This script explains that you have 5 options:
==Understand your legal rights==


*a '''payment hearing'''
===You have options to get your judgment paid===
*an '''order for seizure and sale of goods'''
Winning a lawsuit does not guarantee you will be paid. The person you sued (called the “debtor”, as they owe you a debt) might refuse to pay your judgment. But you have options:
*a '''garnishment order'''
*You can schedule a kind of '''enforcement hearing''' with the court. There, you can find out the debtor’s financial situation and get an order setting up a schedule of payments.
*a '''default hearing'''
*You can go to the court registry to get an '''order for seizure and sale''' of the debtor’s personal property. You can then hire a court bailiff to carry out the order, taking and selling the debtor’s property.
*'''registration of a payment order against land'''
*You can seek another order from the court, called a '''garnishing order'''. This requires a third party who owes money to the debtor to make payments to you.
*If you have a court order requiring the debtor to make instalment payments, and they don’t, you can ask the court for a '''default hearing''', where the court can impose penalties.
*You can '''register your court judgment''' against any land the debtor owns in British Columbia. This will severely restrict the debtor’s ability to sell or mortgage the land until they pay the judgment.


But first, you must file your payment order or default order (explained below). You are called the creditor after you win a judgment. The defendant who you sued is called the debtor. If the person you sued has no assets and no job, or if they became bankrupt or moved out of the country, you may never get paid.
We explain each option shortly.


==File your court order==
===If there's a payment schedule===
After a judge makes a '''payment order''' at the end of a trial or settlement conference, you must go to the court registry, fill in a ''Payment Order'' form (Form 10), and give it to the court registry.
A judge might make an order that includes a '''payment schedule''', setting out how much the debtor must pay and how often they must pay it. If the debtor makes the payments following the schedule, you can’t collect the full amount all at once. But if there’s no payment schedule or if the debtor doesn’t follow the schedule, they will owe you the full amount immediately and you can take steps to collect it.


If the defendant did not reply to your claim by the deadline, you can ask the court for a '''default order'''. You must complete an ''Application for a Default Order'' (Form 5). If the amount you claimed is a specific, easily calculated amount, a judge can make an order for you to start collecting it immediately. The default order will require the debtor to pay the amount you claimed plus interest and expenses. In some cases, you will have a hearing with a judge to prove the amount of your claim. A default order isn’t automatic, and you must be prepared to give evidence and show supporting documents to prove the amount owing.
==Options to enforce a court judgment==


A small claims court order lasts for 10 years. After that, you will have to ask the court to extend the order. The court can do that if:
===First, prepare and file your court order===
In a lawsuit, after a judge decides in your favour or you settle the case, you need to prepare an '''order'''. The order records what the judge decided. The order must be filed with the court registry and signed by the court. This must be done before you can take steps to collect on the order. Once you file the order with the court, it becomes an '''enforceable''' court judgment.


*the debtor confirms the cause of action (the thing you sued for); or
A court judgment lasts for 10 years. After that, you will have to ask the court to extend the order.
*you sue again based on the previous order, before the first 10 years are over.


==Write and ask the debtor to pay you==
{| class="wikitable"
After filing your payment order or default order, send a copy of it to the debtor with a letter asking them to pay you. Make the letter short and clear, warning that you will take further action if they don’t pay by a certain date. Set a reasonable deadline (for example, 14 days from the date you send your letter). Include the address where to send the payment. Send the letter by registered mail.
|align="left"|'''Tip'''
A final decision from the Civil Resolution Tribunal, the Residential Tenancy Branch, and many other tribunals can be filed in Provincial Court for enforcement.  
|}


==If there's a payment schedule==
===Next, write and ask the debtor to pay you===
A payment order might include a payment schedule that tells the debtor how much they must pay and how often they must pay it. If the debtor makes the payments following the schedule, you can’t collect the full amount all at once. But if there’s no payment schedule or if the debtor doesn’t follow the schedule, they will owe you the full amount immediately and you can take steps to collect it.
After filing your court order, send a copy of it to the debtor with a letter asking them to pay you. Send the letter by registered mail.


==The five options if the debtor doesn't pay you==
Make the letter short and clear. You can warn them that you will take further action if they don’t pay by a certain date. Set a reasonable deadline — for example, 14 days from the date you send your letter. Include the address where they can send the payment.


===1. Payment hearing===
===You can schedule a kind of enforcement hearing with the court===  
The purpose of a payment hearing is to get information about the debtor's financial situation. At the hearing, the debtor can be required to produce income tax returns, recent pay stubs and other documents that show their assets, income, and debts. At the hearing, the judge considers whether the debtor can pay the payment order, and whether it should include a payment schedule.
One method to enforce a court judgment, available in both Small Claims Court and Supreme Court, is a kind of '''enforcement hearing'''. At this hearing, you can find out the debtor’s financial situation, ask them questions about their ability to pay, and get an order setting up a schedule of payments.


At the hearing, be ready to ask the debtor about their employment, bank accounts, and other assets and sources of income. You can use the information you get at the payment hearing to help collect your judgment. And the costs of your application for the payment hearing will be added to the amount the debtor must pay you.
If your judgment is from Small Claims Court, the hearing is called a '''payment hearing'''. In Supreme Court, there are two examination processes, a '''subpoena to debtor''' or an '''examination in aid of execution'''. In either court, you can file documents with the court to schedule a hearing.


If the debtor doesn’t attend the payment hearing, you can ask the judge to issue an arrest warrant, forcing the debtor to attend. But that’s rarely done. Debtors usually get many chances to pay.
At the hearing, the debtor can be required to produce income tax returns, recent pay stubs, and other documents that show their assets, income and debts. You can ask questions of the debtor about their employment, bank accounts, and other assets and sources of income. The judge considers whether the debtor can pay the court order, and whether to set up a '''payment schedule'''.


===2. Order for seizure and sale of goods===
If the debtor doesn’t attend the hearing, you can ask the judge to issue an arrest warrant, forcing the debtor to attend. (That’s rarely done. Debtors usually get many chances to pay.)
An order for seizure and sale of goods allows a court bailiff to take and sell the debtor’s property. The order lasts for one year. This option can be useful if the debtor doesn’t have any income but has valuable assets, such as an expensive car, a boat, or shares in a profitable company. But you cannot seize certain things. The ''[http://www.bclaws.ca/civix/document/id/complete/statreg/96078_01 Court Order Enforcement Act]'' lets a debtor keep the following things:


*$4,000 of household furnishings and appliances,
You can use the information you get at the hearing to help collect your judgment. And the costs of your application for the hearing will be added to the amount the debtor must pay you.
*A vehicle worth up to $5,000; and
*$10,000 worth of tools and other personal property that the debtor uses to earn income for work.


And the bailiff will be paid first from the sale of the goods, so you should be sure that the debtor has goods worth taking and selling at a court-ordered auction.
===You can get an order to seize and sell the debtor’s personal property===
You can enforce a court judgment by taking action against the '''personal property''' of the debtor. You can go to the court registry to get an '''order for seizure and sale'''. You can then hire a court bailiff to carry out the order, taking and selling the debtor’s property.  


If you get an order for the seizure and sale of goods, give a copy of the payment order or the default order to the Insurance Corporation of British Columbia (ICBC) to see if the debtor has any motor vehicles registered in their name. You can also search the debtor’s name in the [http://www2.gov.bc.ca/gov/content/housing-tenancy/owning-a-home/manufactured-home-registry BC Manufactured Home Registry] and the [http://www2.gov.bc.ca/gov/content/employment-business/business/managing-a-business/permits-licences/bc-registry-services-personal-property-registry Personal Property Registry] to see if the debtor owns any personal property worth more than the things they can keep.
This option, which is available in both Small Claims Court and Supreme Court, can be useful if the debtor has valuable assets, such as a car, a boat, or shares in a profitable company. But you cannot seize everything the debtor owns. Under the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-78/latest/rsbc-1996-c-78.html#sec71_smooth Court Order Enforcement Act]'', a debtor may '''exempt''' certain things from being seized and sold, such as:
*household furnishings and appliances to a value of $4,000
*one vehicle up to a value of $5,000
*$10,000 worth of tools and other personal property the debtor uses to earn income for work


If you seek an order for seizure and sale, you will need to pay a deposit to cover the bailiff’s estimated costs.
If you seek an order for seizure and sale, you will need to pay a deposit to cover the bailiff’s estimated costs. The bailiff will be paid first from the sale of the goods, so try to find out if the debtor has enough property to make the seizure and sale worthwhile. Check with ICBC to see if the debtor has any motor vehicles registered in their name. You can also search the debtor’s name in the [http://www2.gov.bc.ca/gov/content/housing-tenancy/owning-a-home/manufactured-home-registry BC Manufactured Home Registry] and the [http://www2.gov.bc.ca/gov/content/employment-business/business/managing-a-business/permits-licences/bc-registry-services-personal-property-registry Personal Property Registry] to see if the debtor owns any personal property worth more than their exemption amounts.


A related option is to ask a bailiff to search the court’s records to see if any other creditors are trying to collect a debt against the same debtor. If so, you may be able to share in some of the recovery from the debtor. But some creditors, such as the Canada Revenue Agency, may have priority over assets.
An order for seizure and sale lasts for one year.


===3. Garnishment order===
===You can get a garnishing order===
If you get a garnishing order from the court, you can give it to the debtor’s employer or the bank where the debtor has an account, and the wages owed or bank money belonging to the debtor will be paid to the court instead. Once the court receives the money, you can apply to have it paid out to you.
With a court judgment, you can seek another order from the court, called a '''garnishing order''', which requires a third party who owes money to the debtor to make payments to you.


Normally, only 30% of a debtor’s wages can be garnished. And there are some technical rules and steps that you must follow. Discuss the procedure with the court registry staff before starting garnishment.
For example, you can give the garnishing order to the debtor’s employer or to their bank, and the wages owed to the debtor or the money in their bank account will be paid to the court instead. Once the court receives the money, you can apply to have it paid out to you.


Script [[Garnishment (Script 251)|251]] has more on garnishment.
Normally, only 30% of a debtor’s wages can be garnished. And there are some technical rules and steps you must follow. See our information on [[Garnishment (Script 251)|garnishment (no. 251)]] for details of what’s involved.


===4. Default hearing===
===You can ask for a default hearing===
You can ask for a default hearing from the registrar (Form 5) if the debtor doesn’t obey a payment schedule. At a default hearing, the court asks the debtor why they have not made payments the court already ordered, at trial, in a settlement conference, or after a payment hearing.
If you have a court order requiring the debtor to make instalment payments, and they don’t, you can ask for a hearing where the court can impose penalties.  


At the default hearing, the debtor must explain to a judge why they have not followed the payment schedule. The judge can either confirm the original payment schedule or change it. If the judge decides that the debtor’s explanation for not paying shows contempt of court, the judge can send the debtor to jail for up to 20 days, and the debtor must still pay the money.
In Small Claims Court, the hearing is called a '''default hearing'''. In Supreme Court, there are two examination processes, a '''subpoena to debtor''' or an '''examination in aid of execution'''. In either court, you can file documents with the court to schedule the hearing.


For the hearing, you must decide what items the debtor must bring to court, including banking records, tax returns, utility bills and credit card statements. If the debtor does not attend the default hearing, you can ask the judge to issue an arrest warrant.
At this hearing, the court can ask the debtor why they have not made payments under the court order. The judge can either confirm the original payment schedule or change it. If the judge decides the debtor’s explanation for not paying shows contempt of court, the judge can send the debtor to jail, and the debtor must still pay the money.


===5. Registration of payment order against land===
If the debtor does not attend the hearing, you can ask the judge to issue an arrest warrant.
You can register your payment order against any land the debtor owns in British Columbia. This will severely restrict the debtor’s ability to sell or mortgage the land until they pay the judgment. To find out if the debtor owns land in BC, do a name search at the Land Title Office through [https://www.bconline.gov.bc.ca/ BC OnLine].


To register your payment order, you must get a certificate of judgment from the small claims court registry and file it with the [https://ltsa.ca/land-title-office-locations Land Title Office] that has the records of the debtor’s land. The registration is good for 2 years, and can be renewed every 2 years up to 10 years.
===You can register the court judgment against land owned by the debtor===
You can '''register your court judgment''' against any land the debtor owns in British Columbia. This will severely restrict the debtor’s ability to sell or mortgage the land until they pay the judgment.  


You can also ask the BC supreme court to force a sale of the property, so you can recover the amount you are owed from the proceeds of the sale. But this process is expensive and complicated. And it’s not normally used to enforce small claims court judgments.
To find out if the debtor owns land in BC, do a name search at the Land Title Office. You can do this through [https://www.bconline.gov.bc.ca/ BC OnLine].
 
To register your court judgment, you must get a certificate of judgment from the court registry and file it with the [https://ltsa.ca/land-title-office-locations Land Title Office] where the debtor’s land is registered.
 
The registration is good for two years, and can be renewed every two years up to 10 years.
 
You can also ask the BC Supreme Court to force a '''sale of the property''', so you can recover the amount you are owed from the proceeds of the sale. Be aware this process is expensive and involved.
 
==Get help==
 
===With more information===
The '''BC government''' website has how-to guides on Small Claims Court, including one on getting results, explaining the tools available to help you collect on a judgment.
:Web: [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides gov.bc.ca/smallclaims]
 
The '''Supreme Court BC Online Help Guide''', from Justice Education Society, provides step-by-step information on each stage of a lawsuit before that court, including a guide on enforcing court orders.
:Web: [https://www.supremecourtbc.ca/ supremecourtbc.ca]


==More information==
*The [http://www.smallclaimsbc.ca/ small claims website] has a section on [http://www.smallclaimsbc.ca/judgment/collecting-on-judgment collecting on judgment].
*Check the other Dial-A-Law scripts in this [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Small-Claims-Court small claims court series].
*Check the BC government guide called ''[http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/getting-results Getting Results]''.




[updated August 2017]
[updated August 2017]


'''The above was last reviewed for accuracy by Anna Kurt and edited by John Blois.'''
'''The above was last reviewed for legal accuracy by [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group.'''


----
----
3,009

edits