Anger and frustration will get you nowhere. A little skill and persistence will.
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SO YOU HAVE A JUDGMENT
Getting a judgment was the easy part. Collecting it can be a very frustrating experience if you do not know what you are doing. The court may order payment but the debtor usually does not maintain the payment schedule as ordered. It is up to the judgment creditor to use the enforcement processes to satisfy the judgment.
You most likely obtained a judgment by default. This means that the defendant did not respond by filing a defence. This is the case in about 67 percent of claims filed. Why do so many people ignore a small claims action? Because the people who get the judgments do not know how to enforce them. This makes the judgment painless hence, the process is often ignored.
The key to successful judgment enforcement is to be a thorn in the debtors side until they come to the conclusion that it would just be easier to pay the judgment or settle on it. It takes a little bit of skill and persistence. If you understand how this works, then judgments become very powerful instruments. Here are the four basic collection tools:
- Writ of Siezure and Sale of Personal Property
- Writs Against Land
- Examination in Aid of Execution
An Ontario garnishee is good for six years at a time and it can be renewed. Each source of income, revenue or deposit requires a separate garnishing order. Family responsibility takes a priority as does anything owed back to the government. The Creditor Relief Act tells us how money will be distributed by the Sheriff’s office. Judgment enforcement is on behalf of all the creditors whom have writs registered. If you issued a garnishee, you will share equally with any other garnishee creditors of the same status in the garnishee funds. If you have a writ against lands or personal property, then you will share ratably amongst the creditors who also have a writ registered.
Attachable by garnishee is any debt coming due to the debtor that is not protected. Typically if it comes from the government and it is not a wage or salary it is either protected or there is simply no way of attaching it. This list is just a few ideas:
- Wages (80% protected)
- Bank accounts
- Accounts receivable
If the garnishee does not honour the order, the creditor can request a garnishee hearing. If the court determines that the garnishee acted inappropriately, the court will order judgment against the garnishee.
Realizing that there is a lot more than just wages and bank accounts, being a little more creative in finding sources and understanding the power of the garnishee hearing are all instrumental in being successful.
WRIT OF SEIZURE AND SALE OF PERSONAL PROPERTY
The Execution Act tell us what debtor property is exempt.
- Clothing $5,650
- Furniture $11,300
- Motor Vehicle $5650
- Tools of the trade $11,300
- Farm $28,300 + 100 acres of land and some oddities
There are no exempt items for a corporation however, you cannot take substantially or all of the assets so as to prevent them from continuing to operate.
The Sheriff needs a description of items and a personal property search that is not more than 48 hours old. This can be searched through the link on the top left of this page. There is some technical knowledge required in properly searching a debtors’ assets but the lay person could undertake to learn how. The Sheriff will also require a deposit for anticipated expenses. Here are some things you may consider:
- Motor Cycle
- Shares in a corporation
- Intellectual property such as patents and licenses
- Anything not exempt or that which has substantial equity
Sometimes finding these items can be a challenge and in many instances you already know. The list of exemptions is short and clear. Everything else is up to the creditors imagination and investigative skills. This is the real reason why the examination in aid of execution can be helpful.
WRITS AGAINST LAND
The link to search land at the top left of the page will bring you to Teranet. Through Teranet you may search land titles and the OWL writ registry. Although owning land makes the writ more effective, it is always worth registering. The writ is good for six years at a time and can be renewed. Technically you could eventually sell a debtors property but the expense can be quite substantial. We typically use the hurry up and wait approach. The writ effectively stops the debtor from making any transactions related to real property. This includes purchasing, selling, inheriting and mortgaging.
EXAMINATION IN AID OF EXECUTION
This process gives the creditor the ability to examine a debtor under oath with respect to their ability to pay. An unfortunate by product of this process is that the court orders a payment that the debtor typically does not keep. If the creditor is inexperienced, the Judge is likely to interview the debtor. This usually is less fruitful than a prepared creditor or legal professional conducting an examination. From the above information you should have been able to determine that there is a lot you can do with a judgment. This is only the case if you can locate assets and sources of revenue. This is the ultimate goal of this process.
Sometimes there is difficulty in getting the debtor to appear. The notice must be served personally at least 30 days prior to the exam date. Usually a decent process server will get this done for you. You should understand and educate the debtor in the process. Make sure the debtor is aware that you intend to pursue a contempt hearing and eventual committal warrant if they continue to fail to appear. If the debtor fails to appear for a contempt hearing, the judge may order a committal warrant which could put the debtor in jail for up to five days. Letting the debtor know that you will take it this far if you have to, encourages them to appear. You should attempt to conduct the examination and arrange payment in a private interview room prior to the scheduled examination time. Try to get the debtor there early, the Judge usually appreciates that you tried.