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Difference between revisions of "Enforcing Judgments Against Chattels"
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Enforcing Judgments Against Chattels (view source)
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== Summary of the law== | == Summary of the law== | ||
Chattels is a legal term that generally refers to a person’s moveable possessions. The term “chattels” generally does not include possessions that cannot be moved (like “real property”; that is, houses or land). This section deals with the rights of an unsecured judgment creditor to have a debtor’s chattels seized to satisfy a judgment debt. Secured creditors (creditors with a security interest in some or all of a debtor’s chattels) have very different legal rights (see the section on Types of Lenders and Creditors). | Chattels is a legal term that generally refers to a person’s moveable possessions. The term “chattels” generally does not include possessions that cannot be moved (like “real property”; that is, houses or land). This section deals with the rights of an unsecured judgment creditor to have a debtor’s chattels seized to satisfy a judgment debt. Secured creditors (creditors with a security interest in some or all of a debtor’s chattels) have very different legal rights (see the section on [[Types of Lenders and Creditors]]). | ||
=== Actions against chattels before judgment=== | === Actions against chattels before judgment=== | ||
In general, an unsecured creditor cannot take action against the chattels of a debtor until a judgment is obtained. Only after a judgment has been granted on a debt claim can a creditor look to the assets of the debtor to satisfy the judgment. | In general, an unsecured creditor cannot take action against the chattels of a debtor until a judgment is obtained. Only after a judgment has been granted on a debt claim can a creditor look to the assets of the debtor to satisfy the judgment. | ||
Aggressive creditors often threaten action against assets even before a judgment is obtained. (See the section on Harassment.) Such threats are usually baseless because seizure of chattels after judgment can usually be avoided. | Aggressive creditors often threaten action against assets even before a judgment is obtained. (See the section on [[Harassment]].) Such threats are usually baseless because seizure of chattels after judgment can usually be avoided. | ||
However, two exceptions allow unsecured creditors to tie up the assets of a debtor while a legal action is pending (that is, '''before''' a judgment): | However, two exceptions allow unsecured creditors to tie up the assets of a debtor while a legal action is pending (that is, '''before''' a judgment): | ||
* '''A pre-judgment garnishment''' (of a bank account, for example): see the section on Garnishment and Set-offs.
| * '''A pre-judgment garnishment''' (of a bank account, for example): see the section on [[Garnishment and Set-offs]].
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* '''A Mareva injunction:''' Mareva comes from a leading British court decision that outlines when a court can order a debtor not to dispose of assets while an unsecured creditor’s claim is being processed in the courts. Mareva injunctions can only be made by Supreme Court judges — not Small Claims Court judges — under complex circumstances, so a client should consult a lawyer if such an injunction has been threatened or issued.
| * '''A Mareva injunction:''' Mareva comes from a leading British court decision that outlines when a court can order a debtor not to dispose of assets while an unsecured creditor’s claim is being processed in the courts. Mareva injunctions can only be made by Supreme Court judges — not Small Claims Court judges — under complex circumstances, so a client should consult a lawyer if such an injunction has been threatened or issued.
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=== Actions against chattels after judgment=== | === Actions against chattels after judgment=== | ||
Once a judgment is obtained, a creditor is entitled to a further order for seizing a debtor’s assets to satisfy the judgment. In Supreme Court, such an order is known as a '''writ of seizure and sale''' (see [http://canlii.ca/t/8lld Supreme Court Civil Rule] 13-2(1)); in Small Claims Court, it is called an order for seizure and sale (see [http://canlii.ca/t/8571 Small Claims Rule] 11(12)). The creditor can obtain these orders from court registry staff (a court hearing is not needed). The orders are then delivered to the local court bailiff to carry out. | Once a judgment is obtained, a creditor is entitled to a further order for seizing a debtor’s assets to satisfy the judgment. In Supreme Court, such an order is known as a '''writ of seizure and sale''' (see [http://canlii.ca/t/8lld Supreme Court Civil Rule] 13-2(1)); in Small Claims Court, it is called an order for seizure and sale (see [http://canlii.ca/t/8571 Small Claims Rule] 11(12)). The creditor can obtain these orders from court registry staff (a court hearing is not needed). The orders are then delivered to the local court [[Bailiffs, Court Bailiffs and Sheriffs|bailiff]] to carry out. | ||
Sections 47 to 78 of the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act''] set out the procedure that a court bailiff follows to enforce orders. Usually, the court bailiff requires information from the judgment creditor on which assets may be seized. The asset most likely to be seized after judgment is a car; household goods are not usually worth enough to justify seizure. The ''Court Order Enforcement Act'' also allows court bailiffs to seize other assets such as stocks, bonds and promissory notes (enforceable promises to repay a debt or loan). | Sections 47 to 78 of the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act''] set out the procedure that a court bailiff follows to enforce orders. Usually, the court bailiff requires information from the judgment creditor on which assets may be seized. The asset most likely to be seized after judgment is a car; household goods are not usually worth enough to justify seizure. The ''Court Order Enforcement Act'' also allows court bailiffs to seize other assets such as stocks, bonds and promissory notes (enforceable promises to repay a debt or loan). | ||
