Enforcing Judgments Against Land: Difference between revisions
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Enforcing Judgments Against Land (view source)
Revision as of 16:49, 12 October 2018
, 12 October 2018→Procedure for an enforcement action against land
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An '''enforcement action against land''' is a proceeding brought by an unsecured creditor who has obtained a judgment against a debtor. An unsecured creditor does not have a mortgage as security. The creditor must first get a judgment, and then bring the enforcement action. | An '''enforcement action against land''' is a proceeding brought by an unsecured creditor who has obtained a judgment against a debtor. An unsecured creditor does not have a mortgage as security. The creditor must first get a judgment, and then bring the enforcement action. | ||
=== Procedure for an enforcement action | === Procedure for an enforcement action=== | ||
====Starting the action==== | |||
Enforcement actions for the sale of land must be brought in Supreme Court under sections 92 to 113 of the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act'']. These sections provide a code for the procedure for having the property sold. The judgment creditor’s first step is to register the judgment against the debtor’s property in the Land Title Office. | Enforcement actions for the sale of land must be brought in Supreme Court under sections 92 to 113 of the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act'']. These sections provide a code for the procedure for having the property sold. The judgment creditor’s first step is to register the judgment against the debtor’s property in the Land Title Office. | ||
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If the judgment that the creditor is trying to enforce by the sale of land was obtained in Supreme Court, the creditor need only file a Notice of Application in the Supreme Court action between the creditor and debtor. | If the judgment that the creditor is trying to enforce by the sale of land was obtained in Supreme Court, the creditor need only file a Notice of Application in the Supreme Court action between the creditor and debtor. | ||
====Hearing of the action==== | |||
At the first hearing (called a '''“show cause” hearing'''), the debtor must show why the property should not be sold to satisfy the judgment. It is difficult, though not impossible, for debtors to convince the judge to dismiss the creditor’s action. Under s. 96(2) of the ''Court Order Enforcement Act'', if the home of the judgment debtor is on the land, the court may defer the sale depending on how the judgment debtor responds to the terms and conditions, usually [[Instalment Payment Orders|instalment payments]]), set by the court. | At the first hearing (called a '''“show cause” hearing'''), the debtor must show why the property should not be sold to satisfy the judgment. It is difficult, though not impossible, for debtors to convince the judge to dismiss the creditor’s action. Under s. 96(2) of the ''Court Order Enforcement Act'', if the home of the judgment debtor is on the land, the court may defer the sale depending on how the judgment debtor responds to the terms and conditions, usually [[Instalment Payment Orders|instalment payments]]), set by the court. | ||
Most often, the judge makes an order for the next hearing in the process. This is a hearing before a registrar held in a more informal setting. The registrar hears evidence on matters such as the value of the property, what creditors have claims (and for how much) against the property, and the debtor’s financial circumstances. | Most often, the judge makes an order for the next hearing in the process. This is a hearing before a registrar held in a more informal setting. The registrar hears evidence on matters such as the value of the property, what creditors have claims (and for how much) against the property, and the debtor’s financial circumstances. | ||
The registrar writes a brief report, files it in the court file, and sends a copy to both the creditor and the debtor. Then the creditor has to file an application for the final court hearing before a judge. At that final hearing, the judge reviews the registrar’s report and decides whether to make an order to have the property sold. | The registrar writes a brief report, files it in the court file, and sends a copy to both the creditor and the debtor. Then the creditor has to file an application for the final court hearing before a judge. At that final hearing, the judge reviews the registrar’s report and decides whether to make an order to have the property sold. | ||
=== If an enforcement order is made === | === If an enforcement order is made === |