2,553
edits
Difference between revisions of "Instalment Payment Orders"
From Clicklaw Wikibooks
Instalment Payment Orders (view source)
Revision as of 00:05, 17 September 2018
, 00:05, 17 September 2018no edit summary
| Line 11: | Line 11: | ||
However, the creditor is usually entitled to sue for the entire balance due if the debtor '''defaults''' on the credit contract (by missing a payment, for example). The creditor is entitled to do this because most contracts have an '''acceleration clause''' (a clause that allows the creditor to claim the full amount if the debtor does not meet the terms of the original contract). | However, the creditor is usually entitled to sue for the entire balance due if the debtor '''defaults''' on the credit contract (by missing a payment, for example). The creditor is entitled to do this because most contracts have an '''acceleration clause''' (a clause that allows the creditor to claim the full amount if the debtor does not meet the terms of the original contract). | ||
If the creditor’s claim for the full amount is successful in court, the law generally says that the debtor is immediately obliged to pay the full amount, rather than just monthly payments. If the debtor has no legal remedies to pursue (see the sections on Contract Remedies and Debtor’s Options for Getting Out of Debt) or is unsuccessful in negotiating an agreement about payment with the creditor, the creditor can then take steps to enforce the judgment, such as by seizure of assets or garnishment. | If the creditor’s claim for the full amount is successful in court, the law generally says that the debtor is immediately obliged to pay the full amount, rather than just monthly payments. If the debtor has no legal remedies to pursue (see the sections on [[Contract Remedies]] and [[Debtor’s Options for Getting Out of Debt]]) or is unsuccessful in negotiating an agreement about payment with the creditor, the creditor can then take steps to enforce the judgment, such as by [[Bailiffs, Court Bailiffs and Sheriffs|seizure of assets]] or [[Garnishment and Set-off|garnishment]]. | ||
=== Authority for instalment payment orders=== | === Authority for instalment payment orders=== | ||
| Line 39: | Line 39: | ||
==== Specific situations==== | ==== Specific situations==== | ||
Because of the broad provisions of the rules of court in both Supreme Court and Small Claims Court, additional authority may not be needed. However, the following provisions may give added weight to arguments in favour of instalment payment orders and may be more efficient to use: | Because of the broad provisions of the rules of court in both Supreme Court and Small Claims Court, additional authority may not be needed. However, the following provisions may give added weight to arguments in favour of instalment payment orders and may be more efficient to use: | ||
* '''Where a garnishing order has been made:''' Under section 5 of the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act''], a judgment debtor who has been garnished can apply to have the garnishing order set aside and the judgment ordered payable in instalments. So long as the order is in good standing, the creditor cannot issue any further garnishing orders. Section 5 outlines the procedure for applying for an order, and for applying to vary the order if the debtor’s circumstances change. Section 5 also says that if the judgment debtor is in default of the instalment payment order for more than five days, the order is terminated.
| * '''Where a garnishing order has been made:''' Under section 5 of the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act''], a judgment debtor who has been [[Garnishment and Set-offs|garnished]] can apply to have the garnishing order set aside and the judgment ordered payable in instalments. So long as the order is in good standing, the creditor cannot issue any further garnishing orders. Section 5 outlines the procedure for applying for an order, and for applying to vary the order if the debtor’s circumstances change. Section 5 also says that if the judgment debtor is in default of the instalment payment order for more than five days, the order is terminated.
| ||
* '''Where a creditor is seeking to have the debtor’s home sold to pay debts:''' Under section 96 of the ''Court Order Enforcement Act'', a judgment debtor can ask the court to defer the sale of the “home of the debtor” if the creditor is applying to have the home sold to satisfy a judgment. Section 96 says the deferral can be made subject to terms and conditions (including instalment payments) that the court orders.
| * '''Where a creditor is seeking to have the debtor’s home sold to pay debts:''' Under section 96 of the ''Court Order Enforcement Act'', a judgment debtor can ask the court to defer the sale of the “home of the debtor” if the creditor is applying to have the home sold to satisfy a judgment. Section 96 says the deferral can be made subject to terms and conditions (including instalment payments) that the court orders.
| ||
* '''At a subpoena to debtor hearing:''' Under the [http://canlii.ca/t/8lld Supreme Court Civil Rules], a judgment debtor can ask the court to make an instalment payment order at a subpoena to debtor hearing (Rule 13-3(11)).
| * '''At a subpoena to debtor hearing:''' Under the [http://canlii.ca/t/8lld Supreme Court Civil Rules], a judgment debtor can ask the court to make an instalment payment order at a subpoena to debtor hearing (Rule 13-3(11)).
| ||
