9,075
edits
Difference between revisions of "Bailiffs, Court Bailiffs and Sheriffs"
From Clicklaw Wikibooks
Bailiffs, Court Bailiffs and Sheriffs (view source)
Revision as of 16:17, 13 October 2018
, 16:17, 13 October 2018no edit summary
Drew Jackson (talk | contribs) |
|||
| (11 intermediate revisions by the same user not shown) | |||
| Line 4: | Line 4: | ||
== 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.
| ||
* 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.
| ||
* 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.
| ||
* 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.
| ||
== 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>]] | [[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>]] | ||
| Line 16: | Line 16: | ||
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.
| ||
* '''Judgment enforcement repossessions | * '''Judgment enforcement repossessions''': When an unsecured creditor wants assets of the debtor seized and sold to satisfy a court judgment.
| ||
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]]).
| ||
* '''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]).
| ||
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. | ||
| Line 51: | Line 51: | ||
* 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.
| ||
* 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.
| ||
* 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)).
| ||
==== Sheriffs==== | ==== Sheriffs==== | ||
| Line 80: | Line 80: | ||
* 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).
| ||
* 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.
| ||
* 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.
| ||
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]]. | ||
| Line 101: | Line 101: | ||
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: | 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]).
| ||
* '''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]).
| ||
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. | ||
| Line 127: | Line 127: | ||
== 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]]
| ||
* [[Collection Agents]]
| * [[Collection Agents]]
| ||
* [[Garnishment and Set-offs]]
| * [[Garnishment and Set-offs]]
| ||
| Line 135: | Line 135: | ||
* [[Leases]]
| * [[Leases]]
| ||
* [[Recovery of Goods]]
| * [[Recovery of Goods]]
| ||
* [[ | * [[Repairers' Liens]]
| ||
* [[Security Agreements]]
| * [[Security Agreements]]
| ||
* [[Types of Lenders and Creditors]]
| * [[Types of Lenders and Creditors]]
| ||
* [[Unfair or Deceptive Practices]]
| * [[Unfair or Deceptive Practices]]
| ||
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 | ||
