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Difference between revisions of "Enforcing Judgments Against Land"
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Enforcing Judgments Against Land (view source)
Revision as of 00:23, 17 September 2018
, 00:23, 17 September 2018no edit summary
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=== Foreclosures=== | === Foreclosures=== | ||
Foreclosures are proceedings brought by creditors who have mortgages against the property. Usually, a person who borrows money to buy a house has to give a mortgage over the house as security for the creditor. If the borrower defaults, the creditor can bring a legal action to take the property and, at the same time, get a judgment for the money owed. | [[Mortgages and Foreclosure|Foreclosures]] are proceedings brought by creditors who have mortgages against the property. Usually, a person who borrows money to buy a house has to give a mortgage over the house as security for the creditor. If the borrower defaults, the creditor can bring a legal action to take the property and, at the same time, get a judgment for the money owed. | ||
=== Enforcement actions against land=== | === Enforcement actions against land=== | ||
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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. | ||
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 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. If the order is made, the creditor can proceed with the sale by forwarding a copy of the sale order to the local court bailiff. The court bailiff usually arranges for a real estate agent to sell the property. | 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 the order is made, the creditor can proceed with the sale by forwarding a copy of the sale order to the local court [[Bailiffs, Court Bailiffs and Sheriffs|bailiff]]. The court bailiff usually arranges for a real estate agent to sell the property. | ||
If the debtor’s interest in the land is a joint tenancy or tenancy in common, rather than the entire title, a creditor can still take enforcement action. Essentially, the process is the same, except that if one of the co-owners of the property is not a judgment debtor, then only the interest of the judgment debtor is subject to sale. The buyer/new owner may be the judgment creditor, the non-creditor owner, or a third party. If the new co-owners are not compatible, either one of them may apply for a sale of the entire ownership of the property under the [http://canlii.ca/t/848q ''Partition of Property Act'']. | If the debtor’s interest in the land is a joint tenancy or tenancy in common, rather than the entire title, a creditor can still take enforcement action. Essentially, the process is the same, except that if one of the co-owners of the property is not a judgment debtor, then only the interest of the judgment debtor is subject to sale. The buyer/new owner may be the judgment creditor, the non-creditor owner, or a third party. If the new co-owners are not compatible, either one of them may apply for a sale of the entire ownership of the property under the [http://canlii.ca/t/848q ''Partition of Property Act'']. | ||