5,483
edits
Difference between revisions of "Creditors' Remedies against Debtors (10:III)"
Jump to navigation
Jump to search
Creditors' Remedies against Debtors (10:III) (view source)
Revision as of 21:32, 10 June 2016
, 21:32, 10 June 2016→B. Unsecured Creditors
Desy Wahyuni (talk | contribs) |
Desy Wahyuni (talk | contribs) |
||
| Line 218: | Line 218: | ||
Besides the debtor, another creditor may contest the claim (s 15). Grounds for filing include an allegation that there is no debt due in good faith from the debtor to the claimant, or an allegation that the claim is not one of debt as required by s 6 of the ''Creditor Assistance Act''. A claimant whose claim is contested must make an application to the Supreme Court of British Columbia within eight days of being notified; otherwise, the claim will be deemed to have been abandoned. | Besides the debtor, another creditor may contest the claim (s 15). Grounds for filing include an allegation that there is no debt due in good faith from the debtor to the claimant, or an allegation that the claim is not one of debt as required by s 6 of the ''Creditor Assistance Act''. A claimant whose claim is contested must make an application to the Supreme Court of British Columbia within eight days of being notified; otherwise, the claim will be deemed to have been abandoned. | ||
Students should further note that under s 12, if the amount levied does not satisfy all of the writs of execution and certificates of claim, the sheriff is authorized to make a further seizure of the execution debtor’s personal property to satisfy all writs and certificates of claim. In addition, the certificate, if issued, remains in force for three years and may be renewed similarly to a writ of execution. | |||
=== 2. Execution === | |||
Under s 55 of the ''Court Order Enforcement Act'' [''COEA''], any judgment creditor may have property of the judgment debtor seized and sold by the sheriff to satisfy the amount owing under the judgment. Section 60 of the ''COEA'' directs that any surplus after payment of the judgment, interest, and reasonable costs of seizure and sale be paid to the debtor. | |||
=== 3. Exemptions from Seizure === | |||
Section 71(1) of the ''COEA'' creates categories of exemptions for the personal property of debtors with the specific amounts set by regulation. Debtors are allowed: | |||
#Necessary clothing, medical and dental aids that are required by the debtor and their dependants; | |||
#$4,000 for household furnishings and appliances; | |||
#$5,000 for one motor vehicle if the debtor is not a maintenance debtor; | |||
#$2,000 for one motor vehicle if the debtor is a maintenance debtor; | |||
#$10,000 for tools and other personal property that the debtor uses in their occupation. | |||
A “maintenance debtor” has the same meaning as a “debtor” in s 1(1) of the ''Family Maintenance Enforcement Act''. In addition, s 71.1(1) of the ''COEA'' exempts the principal residence of the debtor; $12,000 is the prescribed amount of equity exemption if the debtor's principal residence is located within the boundaries of the Capital Regional District or the Greater Vancouver Regional District. If the debtor’s principle residence is located outside of these boundaries, $9,000 is the prescribed amount of equity exemption. These values are calculated using the net equity. | |||
'''NOTE:''' Refer to BC Reg 28/98 (Court Order Enforcement Exemption Regulations) for further details regarding exemptions under the ''COEA''. Where there are competing priority interests between judgment creditors and secured parties, each party should seek the assistance of counsel. | |||
'''NOTE:''' The execution remedy is available to an unsecured creditor only after they have obtained judgment against the debtor. | |||
'''NOTE:''' The B.C. Court of Appeal decision in ''Atwal (Re)'', 2012 BCCA 46 confirmed that a debtor whose property is sold by a trustee under the ''Bankruptcy and Insolvency Act'' [''BIA''] is entitled to the above exemptions if the value of their property exceeds that which is prescribed in the legislation. Thus, if a debtor’s vehicle, valued in excess of $5000 is sold by a trustee in bankruptcy, the debtor is entitled to $5000 of the sale price, as provided by the exemption. Seizure under Execution | |||
Any goods, chattels and effects of the judgment debtor (''COEA'', s 55), money, bank notes, cheques, or other securities for money, such as shares of an incorporated company in British Columbia (s 64; ''Peligren v Ajac’s Equipment'' (1982) Inc (1984), 56 BCLR 17, [1984] 5 WWR 563 (SC)), and any legal or equitable present, future, executory or contingent interest in land (s 81) may be seized after the exemptions from s 71(1) of the ''COEA'' are applied. | |||
The secured creditor takes the secured goods subject to the security interest of the conditional seller or chattel mortgagee. Where the debtor is a conditional buyer or a chattel mortgagor, a sheriff or bailiff may seize secured goods. Sheriffs, however, are usually reluctant to seize collateral unless there is clearly equity in it. In such cases, the secured creditor cannot seize a greater interest than the debtor has. | |||
p10-11 | |||