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Difference between revisions of "Bailiffs, Court Bailiffs and Sheriffs"
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Bailiffs, Court Bailiffs and Sheriffs (view source)
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== Client problems== | == Client problems== | ||
* | * A creditor with a lien over a client’s car has threatened to repossess the car because the client missed a payment.
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* A bailiff came with a warrant to repossess a client’s rented furniture because the client missed a payment.
| * A bailiff came with a warrant to repossess a client’s rented furniture because the client missed a payment.
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* A sheriff came with a writ (a written court order) to take a client’s household goods because they have not paid on a court judgment that a creditor took against the client some months ago.
| * A sheriff came with a writ (a written court order) to take a client’s household goods because they have not paid on a court judgment that a creditor took against the client some months ago.
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* Client asks what rights they have to refuse to let a “repo man” into the client’s residence or onto the client’s property.
| * Client asks what rights they have to refuse to let a “repo man” into the client’s residence or onto the client’s property.
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== Summary of the law== | == Summary of the law== | ||
[[File:Consumer_Law_and_Debt_-_Bailiffs,_Court_Bailiffs_and_Sheriffs.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istockphoto.com</span>]] | |||
The rights of creditors and debtors in cases of repossession are the rough edge of debtor-creditor law. There is the potential for great upset to clients, and for one side or the other to use force. Those helping the debtor must act very quickly to resolve the problem. | The rights of creditors and debtors in cases of repossession are the rough edge of debtor-creditor law. There is the potential for great upset to clients, and for one side or the other to use force. Those helping the debtor must act very quickly to resolve the problem. | ||
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Repossessions occur in two main instances: | Repossessions occur in two main instances: | ||
* '''Contractual repossessions | * '''Contractual repossessions''': When there is default under a [[Security Agreements|security agreement]] or [[Leases|lease agreement]] between a debtor and creditor.
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* '''Judgment enforcement repossessions | * '''Judgment enforcement repossessions''': When an unsecured creditor wants assets of the debtor seized and sold to satisfy a court judgment.
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It is important to distinguish between these two situations, because the rights and remedies of all the players (including the debtor, creditor, and party doing the repossessing) are different in each situation. | It is important to distinguish between these two situations, because the rights and remedies of all the players (including the debtor, creditor, and party doing the repossessing) are different in each situation. | ||
There is a fundamental difference in the authority and the laws under which each action is taken: | There is a fundamental difference in the authority and the laws under which each action is taken: | ||
* '''Contractual repossessions | * '''Contractual repossessions''': A bailiff carrying out a repossession under a security agreement or a lease agreement is repossessing on the basis of contractual rights governed by the [http://canlii.ca/t/8495 ''Personal Property Security Act''] (see the section on [[Security Agreements]]) or related legislation such as the [http://canlii.ca/t/84bv ''Repairers Lien Act''] (see the section on [[Repairers' Liens|Repairers' Liens]]).
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* '''Judgment enforcement repossessions | * '''Judgment enforcement repossessions''': A court bailiff carrying out a seizure for a judgment creditor does so under a court order governed by the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act''] and the [http://canlii.ca/t/8lld Supreme Court Civil Rules] (or the [http://canlii.ca/t/84cs ''Small Claims Act''] and [http://canlii.ca/t/8571 Small Claims Rules]).
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As explained below, a debtor can deal with a repossession problem in various ways. | As explained below, a debtor can deal with a repossession problem in various ways. | ||
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* Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-425/latest/rsbc-1996-c-425.html#sec3_smooth section 3(2)], a court bailiff “is deemed to be a sheriff” for a number of purposes, including almost all aspects of judgment enforcement.
| * Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-425/latest/rsbc-1996-c-425.html#sec3_smooth section 3(2)], a court bailiff “is deemed to be a sheriff” for a number of purposes, including almost all aspects of judgment enforcement.
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* Court bailiffs cannot carry out orders for the arrest of debtors; this must still be done by sheriffs.
| * Court bailiffs cannot carry out orders for the arrest of debtors; this must still be done by sheriffs.
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* Court bailiffs are not governed by the provisions of the Business Practices and | * Court bailiffs are not governed by the provisions of the ''Business Practices and Consumer Protection Act'' (see the [http://canlii.ca/t/85bb Debt Collection Industry Regulation], section 2(1)).
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==== Sheriffs==== | ==== Sheriffs==== | ||
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* A bailiff or court bailiff can generally take the chattels of a debtor if the goods are outside a dwelling house (for example, a car in a driveway).
| * A bailiff or court bailiff can generally take the chattels of a debtor if the goods are outside a dwelling house (for example, a car in a driveway).
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* A bailiff or court bailiff cannot usually use force to take something in the direct possession of the debtor (that the debtor is physically holding) that the debtor is refusing to release.
| * A bailiff or court bailiff cannot usually use force to take something in the direct possession of the debtor (that the debtor is physically holding) that the debtor is refusing to release.
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* If either party wrongly uses force, they may be liable for criminal charges. In [http://canlii.ca/t/g18pq R. v. Doucette], for example, three bailiffs were convicted of assault when a struggle developed as they were trying to repossess a television from the debtor’s apartment.
| * If either party wrongly uses force, they may be liable for criminal charges. In [http://canlii.ca/t/g18pq ''R. v. Doucette''], for example, three bailiffs were convicted of assault when a struggle developed as they were trying to repossess a television from the debtor’s apartment.
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For more on the extent of force allowed in a repossession, see the section on [[Tort Actions]]. See also the section on [[Recovery of Goods]]. | For more on the extent of force allowed in a repossession, see the section on [[Tort Actions]]. See also the section on [[Recovery of Goods]]. | ||
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If a client has the financial resources to make up the arrears payment(s), the first approach is usually to offer the creditor the arrears. If the client’s ability to pay is limited because of illness, job loss, or another valid cause, a variation on this approach might be to ask the creditor to take a lower monthly payment for a fixed period of time. | If a client has the financial resources to make up the arrears payment(s), the first approach is usually to offer the creditor the arrears. If the client’s ability to pay is limited because of illness, job loss, or another valid cause, a variation on this approach might be to ask the creditor to take a lower monthly payment for a fixed period of time. | ||
For security agreements covered by the [http://canlii.ca/t/8495 ''Personal Property Security Act''], the debtor has a number of special statutory rights when the goods are “'''consumer goods'''” as defined under that law. These include: | For [[Security Agreements|security agreements]] covered by the [http://canlii.ca/t/8495 ''Personal Property Security Act''], the debtor has a number of special statutory rights when the goods are “'''consumer goods'''” as defined under that law. These include: | ||
* '''The right to reinstate | * '''The right to reinstate''': The right to reinstate the contract (that is, go back to making regular monthly payments instead of paying the whole balance) if the client pays the arrears ([https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-359/latest/rsbc-1996-c-359.html#sec62_smooth section 62]).
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* '''The two-thirds rule | * '''The two-thirds rule''': The right not to have the goods repossessed when at least two-thirds of the purchase price has been paid ([https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-359/latest/rsbc-1996-c-359.html#sec58_smooth section 58]).
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In some instances, it may be to the advantage of the client to allow repossession, or even to offer to return the secured goods to the secured creditor (this is called “surrender” of the goods). Under the consumer goods provisions of the ''Personal Property Security Act'', the debtor’s financial obligations to the creditor may be cancelled upon repossession. | In some instances, it may be to the advantage of the client to allow repossession, or even to offer to return the secured goods to the secured creditor (this is called “surrender” of the goods). Under the consumer goods provisions of the ''Personal Property Security Act'', the debtor’s financial obligations to the creditor may be cancelled upon repossession. | ||
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If the value of the goods to be repossessed is relatively low compared to the total amount owed to the creditor, the debtor may be able to have the entire debt discharged in exchange for giving up the goods. | If the value of the goods to be repossessed is relatively low compared to the total amount owed to the creditor, the debtor may be able to have the entire debt discharged in exchange for giving up the goods. | ||
If a security agreement states that all current and after-acquired property of the debtor is covered by the agreement, there may be an argument (in fairly extreme situations) that the agreement is an unfair trade practice, or unconscionable (unscrupulous or unreasonable). | If a security agreement states that all current and after-acquired property of the debtor is covered by the agreement, there may be an argument (in fairly extreme situations) that the agreement is an [[Unfair or Deceptive Practices|unfair trade practice]], or unconscionable (unscrupulous or unreasonable). | ||
=== Judgment enforcement repossessions=== | === Judgment enforcement repossessions=== | ||
See the section on Enforcing Judgments against Chattels. | See the section on [[Enforcing Judgments Against Chattels|Enforcing Judgments against Chattels]]. | ||
=== Complaints against bailiffs and court bailiffs=== | === Complaints against bailiffs and court bailiffs=== | ||
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=== Actions against bailiffs and court bailiffs=== | === Actions against bailiffs and court bailiffs=== | ||
In general, if a bailiff or a court bailiff has wrongfully taken property from a debtor, the debtor has a cause of action to have the property returned and a cause of action for general damages. See the section on Recovery of Goods. Determining if the property was wrongfully taken usually requires a lawyer’s opinion. | In general, if a bailiff or a court bailiff has wrongfully taken property from a debtor, the debtor has a cause of action to have the property returned and a cause of action for general damages. See the section on [[Recovery of Goods]]. Determining if the property was wrongfully taken usually requires a lawyer’s opinion. | ||
If a bailiff uses excessive force in carrying out a repossession, the debtor may have a cause of action for civil assault. See the section on Tort Actions. | If a bailiff uses excessive force in carrying out a repossession, the debtor may have a cause of action for civil assault. See the section on [[Tort Actions]]. | ||
Raising the possibility of legal action, or actually starting an action, can give the debtor a particularly effective bargaining advantage. For example, the debtor’s claim may be set-off against some or all of the creditor’s claim. | Raising the possibility of legal action, or actually starting an action, can give the debtor a particularly effective bargaining advantage. For example, the debtor’s claim may be set-off against some or all of the creditor’s claim. | ||
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== Related topics and materials== | == Related topics and materials== | ||
See the other sections on dealing with debt: | See the other sections on dealing with debt: | ||
* Harassment
| * [[Harassment by Debt Collectors]]
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* Collection | * [[Collection Agents]]
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* Garnishment and Set- | * [[Garnishment and Set-offs]]
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See related topics: | See related topics: | ||
* Enforcing Judgments Against | * [[Enforcing Judgments Against Chattels]]
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* | * [[Leases]]
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* Recovery of | * [[Recovery of Goods]]
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* | * [[Repairers' Liens]]
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* Security | * [[Security Agreements]]
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* Types of Lenders and | * [[Types of Lenders and Creditors]]
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* Unfair or Deceptive | * [[Unfair or Deceptive Practices]]
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See also the | See also the People's Law School page on [https://www.peopleslawschool.ca/everyday-legal-problems/money-debt/dealing-debt/creditor-wants-repossess-your-property when a creditor seeks to repossess property]. | ||
{{Consumer and Debt Law Navbox|type = | {{Consumer and Debt Law Navbox|type = debt}} | ||
{{Creative Commons for PLS | {{Creative Commons for PLS | ||
