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Difference between revisions of "Enforcement of a Small Claims Judgment (20:XVII)"
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Enforcement of a Small Claims Judgment (20:XVII) (view source)
Revision as of 15:16, 7 August 2016
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== H. Bankruptcy == | == H. Bankruptcy == | ||
If a person files a consumer proposal or becomes bankrupt, the law automatically puts in place a “stay of | If a person files a consumer proposal or becomes bankrupt, the law automatically puts in place a “stay of proceedings”. With a few exceptions, a stay prevents any legal action from being commenced or continued against bankrupt. The person’s trustee will send legal notice of the stay to any person or business currently engaged in legal action against the person declaring bankruptcy. The stay is also sent to the Court that is handling the person’s legal action and if a creditor has already obtained a judgment against the person, a copy is sent to debtor’s employer as well to stop the garnishee. | ||
The Stay of Proceedings is only effective against debts that are dischargeable (i.e., can be eliminated) by bankruptcy law. Things like child support, spousal support, restitution orders, repayment of debts based on fraud or misrepresentation and some others are not stopped by a stay. A complete list of the debts can be found under s. 178 of the ''Bankruptcy and Insolvency Act of Canada''. | The Stay of Proceedings is only effective against debts that are dischargeable (i.e., can be eliminated) by bankruptcy law. Things like child support, spousal support, restitution orders, repayment of debts based on fraud or misrepresentation and some others are not stopped by a stay. A complete list of the debts can be found under s. 178 of the ''Bankruptcy and Insolvency Act of Canada''. | ||
There | There are ways for creditors to circumvent a Stay of Proceedings. However, clients with a judgment awarded in Small Claims Court are advised to speak with a trustee and discuss the mechanism of submitting a proof of claim. This form must be filled out to share in the dividends and vote at the first meeting of creditors (if one is held). The form contains the name of the creditor and the bankrupt and the nature and amount of the claim, as well as other information. A list of instructions is usually included. You must attach a Statement of Account providing the details of the claim along with supporting documents or other evidence that establishes the validity of your claim. | ||
== I. Debt collection == | == I. Debt collection == | ||
Part 7 of the ''Business Practices and Consumer Protection Act'' (BPCPA)deals with debt collection practices and applies to all transactions, including consumer to consumer, business to consumer, and consumer to business. A collector is defined as “any person, whether in British Columbia or not, who is collecting or attempting to collect a debt”. Collectors should be aware of the proscriptions in this BPCPA because there are penalties and fines associated with violating the provisions. For example, Part 10 s. 171 of the Actgives rise to a statutory cause of action in Provincial Court to recover damages caused by contraventions of the Act and also gives the Provincial Court jurisdiction for defamation and malicious prosecution. | Part 7 of the ''Business Practices and Consumer Protection Act'' (BPCPA)deals with debt collection practices and applies to all transactions, including consumer to consumer, business to consumer, and consumer to business. A collector is defined as “any person, whether in British Columbia or not, who is collecting or attempting to collect a debt”. Collectors should be aware of the proscriptions in this BPCPA because there are penalties and fines associated with violating the provisions. For example, Part 10 s. 171 of the Actgives rise to a statutory cause of action in Provincial Court to recover damages caused by contraventions of the Act and also gives the Provincial Court jurisdiction for defamation and malicious prosecution. | ||