Enforcement of a Small Claims Judgment (20:XVII): Difference between revisions
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Enforcement of a Small Claims Judgment (20:XVII) (view source)
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{{REVIEWED LSLAP | date= August | {{REVIEWED LSLAP | date= August 12, 2022}} | ||
{{LSLAP Manual TOC|expanded = smallclaims}} | {{LSLAP Manual TOC|expanded = smallclaims}} | ||
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The judgment creditor should send a copy of the payment order with a demand letter to the debtor. If the court did not give the debtor a deadline, the judgment debt is due immediately (''Court Order Enforcement Act'', RSBC 1996, c 78, s 48(1)). The demand letter should warn that, if payment is not received by a certain date (i.e., 10 days later), other enforcement proceedings will be pursued. | The judgment creditor should send a copy of the payment order with a demand letter to the debtor. If the court did not give the debtor a deadline, the judgment debt is due immediately (''Court Order Enforcement Act'', RSBC 1996, c 78, s 48(1)). The demand letter should warn that, if payment is not received by a certain date (i.e., 10 days later), other enforcement proceedings will be pursued. | ||
The Small Claims Court has an excellent procedural guide entitled “[http:// | The Small Claims Court has an excellent procedural guide entitled “[http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/getting-results Getting Results]”. Once an enforcement strategy has been decided upon, a judgment creditor should consult the booklet for detailed instructions on how to commence enforcement proceedings. | ||
To enforce payment, a creditor may use any of the following methods (''SCR'', Rule 11(11)): | To enforce payment, a creditor may use any of the following methods (''SCR'', Rule 11(11)): | ||
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The creditor must also fill out a garnishing order identifying the garnishee (the bank or the employer) with its full legal name and address. In the case of a bank, the specific branch must be identified and must be located in British Columbia. The garnishee will pay the entire amount it owes the debtor (i.e., the positive balance in a bank account). The garnishing order does not freeze the account; the claimant may re-garnish the bank at any time. | The creditor must also fill out a garnishing order identifying the garnishee (the bank or the employer) with its full legal name and address. In the case of a bank, the specific branch must be identified and must be located in British Columbia. The garnishee will pay the entire amount it owes the debtor (i.e., the positive balance in a bank account). The garnishing order does not freeze the account; the claimant may re-garnish the bank at any time. | ||
Once the creditor receives a garnishing order, they must serve both the garnishee and the debtor either personally, or by registered mail. | Once the creditor receives a garnishing order, they must serve both the garnishee and the debtor either personally, or by registered mail requiring signature. | ||
Once an order for garnished wages is served on the garnishee, the order is only valid for wages due and owing within '''seven''' days (''Court Order Enforcement Act'', RSBC 1996, c 78, s 1) – it is therefore critical to have some knowledge relating to the debtor’s pay schedule. If the garnishee owes money to the debtor, they must pay the amount owed to the court. All money paid into court is held until further order of the court. | Once an order for garnished wages is served on the garnishee, the order is only valid for wages due and owing within '''seven''' days (''Court Order Enforcement Act'', RSBC 1996, c 78, s 1) – it is therefore critical to have some knowledge relating to the debtor’s pay schedule. If the garnishee owes money to the debtor, they must pay the amount owed to the court. All money paid into court is held until further order of the court. | ||
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== D. Payment Hearing == | == D. Payment Hearing == | ||
A payment hearing may be scheduled before a judge or justice of the peace (''SCR'', Rule 12). | A payment hearing may be scheduled before a judge or justice of the peace (''SCR'', Rule 12). The default method of appearance is by telephone or Teams audio or videoconference. The payment hearing will determine the debtor’s ability to pay and whether a payment schedule should be ordered (''SCR'', Rule 12(1)). Such a hearing may be requested by a creditor or debtor or ordered by a judge (''SCR'', Rule 12(2)). However, if a creditor has an order for seizure and sale, they must get the permission of a judge to also have a payment hearing. The debtor must bring records and evidence of income and assets, debts owed to and by the debtor, any assets the debtor has disposed of since the claim arose, and the means that the debtor has, or may have in the future, of paying the judgment (''SCR'', Rule 12(12)). Costs to the applicant in such a proceeding are added to the sum of the judgment. | ||
A creditor who requests a hearing must file Form 12: Summons to a Payment Hearing. The registry will set a date on the form and the person named in the summons must be served personally at least seven days before the date of the hearing (''SCR''Rules 12(7) and 18(12)(b)); service by mail is not permitted. | A creditor who requests a hearing must file Form 12: Summons to a Payment Hearing. The registry will set a date on the form and the person named in the summons must be served personally at least seven days before the date of the hearing (''SCR''Rules 12(7) and 18(12)(b)); service by mail is not permitted. | ||
