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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)
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A judgment is valid for 10 years. (See ''Limitation Act'', RSBC 1996, c 266: s 3(3)(f)). During that time, a judgment creditor may use whatever means permitted by law to enforce the order. (See ''Court Order Enforcement Act'', RSBC 1996, c 78). First, the successful party must fill out a payment order form (Form 10) and file it in the registry. Interest and expenses need to be included, and a plain piece of paper showing those calculations should be attached. Although it is called a “payment order”, the form is used even if no payment of money is ordered. There is space at the bottom of the form for a description of a non-monetary order. The registry will compare it with the court record for accuracy and it will then be signed and ready for pick-up or mailed within a day or two. | A judgment is valid for 10 years. (See ''Limitation Act'', RSBC 1996, c 266: s 3(3)(f)). During that time, a judgment creditor may use whatever means permitted by law to enforce the order. (See ''Court Order Enforcement Act'', RSBC 1996, c 78). First, the successful party must fill out a payment order form (Form 10) and file it in the registry. Interest and expenses need to be included, and a plain piece of paper showing those calculations should be attached. Although it is called a “payment order”, the form is used even if no payment of money is ordered. There is space at the bottom of the form for a description of a non-monetary order. The registry will compare it with the court record for accuracy and it will then be signed and ready for pick-up or mailed within a day or two. | ||
The | The judgment creditor should send a copy of the payment order with a demand letter to the debtor. If the court did not give the debtor a deadline, the judgment debt is due immediately. (See ''Court Order Enforcement Act'', RSBC 1996, c 78: s 48(1)). The demand letter should warn that, if payment is not received by a certain date (e.g., 10 days later), other enforcement proceedings will be pursued. | ||
The Small Claims Court has an excellent procedural guide entitled | The Small Claims Court has an excellent procedural guide entitled “[http://www.ag.gov.bc.ca/courts/small_claims/info/guides/getting_results.htm Getting Results]”. Once an enforcement strategy has been decided upon, a judgment creditor should consult the booklet for detailed instructions on how to commence enforcement proceedings. | ||
To enforce payment, a creditor may use any of the following | To enforce payment, a creditor may use any of the following methods (Rule 11(11)): | ||
== A. Prohibition on Enforcement == | == A. Prohibition on Enforcement == | ||
While | While a debtor is in compliance with a payment schedule, the judgment creditor cannot take any additional steps to collect the debt (Rule 11(6)). If a payment hearing is ordered because the creditor did not agree with the debtor’s proposed payment schedule, the creditor may not take any steps to collect the debt before the hearing (Rule 11(8)). If a summons to a payment hearing is otherwise filed, the creditor may not attempt to collect the judgment debt until after the hearing is over or the summons is either withdrawn or cancelled (Rule 11(17)). | ||
'''If | '''If the debtor defaults on the payment schedule, the balance becomes due immediately and the creditor may then take other steps to collect the balance''' (Rule 11(14). | ||
The Small Claims Court may be '''unable''' to enforce a mediation agreement if doing so would exceed its jurisdiction. Other mediation agreements and the decisions of adjudicators in simplified trials can be | The Small Claims Court may be '''unable''' to enforce a mediation agreement if doing so would exceed its jurisdiction. Other mediation agreements and the decisions of adjudicators in simplified trials can be enforced. (''Carter v Ghanbari'', 2010 BCPC 266; ''Wood v Wong'', 2011 BCSC 794). | ||
It may not be possible to enforce a judgment against a debtor who has discharged the judgment debt in | It may not be possible to enforce a judgment against a debtor who has discharged the judgment debt in bankruptcy. A judgment creditor who learns that a judgment debtor plans to file for bankruptcy should review s 178 of the ''Bankruptcy and Insolvency Act'', RSC 1985, c B-3 and obtain independent advice. | ||
== B. Order for Seizure and Sale == | == B. Order for Seizure and Sale == | ||
An order for seizure and sale allows for personal property belonging to the debtor to be seized | An order for seizure and sale allows for personal property belonging to the debtor to be seized by a bailiff and sold at public auction. Examples of personal property that can be seized include vehicles, furniture, and electronics. A personal judgment debtor (i.e., not a corporation) is entitled to retain certain personal property up to a certain value set by regulation. (See ''Court Order Enforcement Act'', RSBC 1996, c 78: s 71(1); ''Court Order Enforcement Exemption Regulation'', BC Reg 28/98, s 2). | ||
The | The net proceeds (after deduction of the bailiff’s fees and expenses) are given to the judgment creditor. One a judgment creditor has filed Form 11, the registrar can grant an order for seizure and sale if there is no payment schedule or if the debtor has not complied with a payment schedule (Rules 11(11)(a) and 11(14)(b)). | ||
The | The debtor is not notified of the order prior to seizure. A seizure and sale is not carried out by the creditor and must be done by private bailiffs. Before an order is issued, the creditor must deposit the estimated fees and expenses of the bailiffs. An order for seizure and sale is valid for one year. | ||
== C. Garnishment After Judgment == | == C. Garnishment After Judgment == | ||
Garnishment requires a third party, often the debtor’s employer or bank, to pay money owing to the debtor | Garnishment requires a third party, often the debtor’s employer or bank, to pay money owing to the debtor into court instead of to the debtor. The creditor must file an affidavit that describes the amount of the payment order, the amount still owing and the name and address of the garnishee. The affidavit must be sworn before a notary, a lawyer, or a justice of the peace at the registry. Certain assets such as social assistance payments (welfare, disability) and joint accounts may not be garnished. With some exceptions, only 30 per cent of the debtor’s salary can be garnished. (See ''Court Order Enforcement Act'', RSBC 1996, c 78, s-s 3(5)-(7)). | ||
The creditor must also fill out a garnishing order identifying the garnishee (the bank or the employer) with its full legal name and address. In the case of a bank, the specific branch must be identified and must be located in British Columbia.The garnishee will pay the entire amount it owes the debtor (i.e., the | The creditor must also fill out a garnishing order identifying the garnishee (the bank or the employer) with its full legal name and address. In the case of a bank, the specific branch must be identified and must be located in British Columbia. The garnishee will pay the entire amount it owes the debtor (i.e., the positive balance in a bank account). The garnishing order does not freeze the account; the claimant may re-garnish the bank at any time. | ||
Once the creditor receives a garnishing order, he or she must serve both the garnishee and the debtor either personally, or by registered mail. | Once the creditor receives a garnishing order, he or she must serve both the garnishee and the debtor either personally, or by registered mail. | ||
Once an order for garnished wages is served on the garnishee, the order is only valid for wages due and | Once an order for garnished wages is served on the garnishee, the order is only valid for wages due and owing within '''seven''' days (see ''Court Order Enforcement Act'', RSBC 1996, c 78, s 1) – it is therefore critical to have some knowledge relating to the debtor’s pay schedule. If the garnishee owes money to the debtor, he or she must pay the amount owed into court. All money paid into court is held until further order of the court. | ||
A creditor may apply for the garnishment of a debtor’s bank account and accounts receivable '''before''' a judgment is reached. This is called a pre-judgment garnishing order. | A creditor may apply for the garnishment of a debtor’s bank account and accounts receivable '''before''' a judgment is reached. This is called a pre-judgment garnishing order. For more information, refer to the chapter of the LSLAP manual entitled “[[Introduction_to_Creditors%27_Remedies_(10:I) | Creditors’ Remedies and Debtors’ Assistance]]” and, specifically, the section entitled “[[Creditors%27_Remedies_against_Debtors_(10:II)#4. Garnishment of Bank Accounts and other Accounts Receivable | Garnishment of Bank Accounts and Other Accounts Receivable]]”. | ||
== D. Payment Hearing == | == D. Payment Hearing == | ||
A | A payment hearing may be scheduled before a judge or justice of the peace (Rule 12). It will determine the debtor’s ability to pay and whether a payment schedule should be ordered (Rule 12(1)). Such a hearing may be requested by a creditor or debtor or ordered by a judge (Rule 12(2)). However, if a creditor has an order for seizure and sale, he or she must get the permission of a judge to also have a payment hearing. The debtor must bring records and evidence of income and assets, debts owed to and by the debtor, any assets the debtor has disposed of since the claim arose, and the means that the debtor has, or may have in the future, of paying the judgment (Rule 12(12). Costs to the applicant in such a proceeding are added onto the sum of the judgment. | ||
A creditor who requests a hearing must file | A creditor who requests a hearing must file Form 12: Summons to a Payment Hearing. The registry will set a date on the form and the person named in the summons must be served '''personally''' at least seven days before the date of the hearing (Rules 12(7) and 18(12)(b)); service by mail is not permitted. | ||
If the debtor is having difficulty paying, he or she can request a hearing by filing Form 13: Notice of Payment | If the debtor is having difficulty paying, he or she can request a hearing by filing Form 13: Notice of Payment Hearing which must be served on the creditor at least seven days before the date of the hearing, but may be served by regular mail as long as it is mailed at least 21 days in advance of the hearing date (Rules 12(11),18(12)(b), and 18(13)). | ||
If | If a person who was properly summoned or ordered by the court to attend a payment hearing does not attend, the creditor may ask that the judge or justice of the peace issue a warrant (Form 9) to arrest that person (Rule 12(15)). | ||
If a creditor does not appear, the hearing may be held, cancelled, or | If a creditor does not appear, the hearing may be held, cancelled, or postponed (Rule 12(14)). | ||
== E. Driver’s Licence Suspension == | == E. Driver’s Licence Suspension == | ||
If damages are a result of a motor vehicle accident involving property damage exceeding $400, bodily injury, or | If damages are a result of a motor vehicle accident involving property damage exceeding $400, bodily injury, or death (see ''Motor Vehicle Act'', s 91(1)), the creditor may apply to the Superintendent of Motor Vehicles within 30 days of the judgment to have the debtor’s driver’s licence suspended. The Superintendent may suspend the licence upon receiving the judgment. | ||
== F. Default Hearing == | == F. Default Hearing == | ||
