== Summary of the law==

[[File:Consumer_Law_and_Debt_-_Enforcing_Judgments_Against_Land.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]

Foreclosures and enforcement actions are the two main legal proceedings that creditors may bring against a home that a debtor owns. It is important to understand the differences between the proceedings.

'''Foreclosure''' is a proceeding brought by a creditor who has a mortgage interest in a property. Usually, when a person borrows money to buy a home, they have to give the lender a mortgage over the home as security. If the borrower defaults, the lender can bring a legal action to take (or "foreclose") the property and, at the same time, get a judgment for the money owed. See the [[Mortgages and Foreclosure]] section for details.

An '''enforcement action against land''' is a proceeding brought by an unsecured creditor who has obtained a judgment against a debtor. An unsecured creditor does not have a mortgage as security. The creditor must first get a judgment, and then bring the enforcement action.

Enforcement actions for the sale of land must be brought in Supreme Court under sections 92 to 113 of the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act'']. These sections provide a code for the procedure for having the property sold. The judgment creditor’s first step is to register the judgment against the debtor’s property in the Land Title Office.

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 Payment Orders|instalment payments]]), set by the court.

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 [[Bailiffs, Court Bailiffs and Sheriffs|court bailiff]]. The court bailiff usually arranges for a real estate agent to sell the property.

Under the [http://canlii.ca/t/858w Court Order Enforcement Exemption Regulation], a judgment debtor whose principal residence is located within the Metro Vancouver or Victoria areas may claim $12,000 equity that is exempt from seizure. Judgment debtors living outside these areas may claim an exemption of $9,000 equity in their principal residences.

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''].