Difference between revisions of "Introduction to Debtors' Options (10:IV)"

A debtor cannot seek to avoid defending an action in court where that action takes place in another province on the grounds that the court lacks jurisdiction. An action under s 29 of the ''COEA'' to enforce an extra-provincial default judgment may proceed where the debtor was  served but chose not to offer any defence to the original statement of claim. The creditor simply registers a judgment from another province in B.C., and it becomes a B.C. judgment. Furthermore, as a result of the decisions in ''Morguard Investments v De Savoye'', [1990] 3 SCR 1077 and ''Beals v Saldanha'', [2003] 3 SCR 416, 2003 SCC 72, American and other international default judgments can be easily enforced in B.C. A creditor seeking to register a judgment in B.C. should be aware that only judgments from a reciprocating state can be registered. To determine if a reciprocating agreement exists go to the schedule in the ''COEA''. If there is no reciprocating agreement in place, a creditor can bring an action on the judgment or on the original cause of action.

== A. Legal Advice for Debtors Under Secured Transactions ==

=== 1. Notice ===

Subject to the circumstances where notice is not required as per s 59 (17) (i.e. for perishable collateral, collateral requiring disproportionately high storage costs relative to its value, etc.), the requirements for notice are outlined in ss 59(6) and (10): the secured party or receiver, as the case may be, must provide at least 20 days’ notice of an intention to dispose of the collateral to parties including the debtor and any other creditor. The clinician should check to make sure that the debtor received notice in time and in the correct form. See [[Creditors%27 Remedies against Debtors (10:II)#8. Notice to Dispose of Collateral | Section II.A.8: Notice to Dispose of Collateral]] for a complete account of the notice requirements that must be met under the PPSA.

Under ss 3 or 4 of the ''COEA'', a judge has the discretion to set aside a garnishing order once the debtor has made an application. A judge will consider:  

#the strengths and weaknesses of the defendant’s defence to the claim.  

If the debtor receives income from a statutory benefit that is exempt from garnishment (e.g social assistance), they should be advised as to how to protect their money after it is paid to them. '''The right of offset allows banks to seize deposited funds from an account at that  institution to cover a loan or account in default. If funds which are exempt from garnishment are deposited into a regular account that is commingled with other funds, they will not be protected from seizure by the financial institution. Their income should be safe if it is paid by  direct deposit into an account at an institution to which they do not owe any money.''' No other deposits should ever be made into this account.  It is also helpful to speak to a branch manager so that they understand the purpose of the account. '''A debtor should be advised that they have  a right to open a personal bank account at a chartered bank, even if they do not have a job or do not have money to put in the account right away.''' However, the applicant can be refused if the bank employee suspects fraud or experiences harassment from the applicant. For further  information, see: http://www.fcac-acfc.gc.ca and navigate through the website by clicking on Consumers > Resources > Publications > Banking > Opening a personal banking account: understanding your rights.

== C. Harassment by Debt Collectors ==

Website: http://www.transunion.ca