Judgment Enforcement - - How to Collect Your Money

How can I collect my money?

Once I have a judgment in my favour, where do I start?

CONVINCING THE JUDGMENT DEBTOR TO PAY

You may try using the judgment to convince the judgment debtor to pay you. Sometimes initial contact with the judgment debtor may convince the judgment debtor to pay you. You can contact the judgment debtor by registered mail, by phone or in person. If you do not want to approach the judgment debtor yourself, you might be able to hire a collection agency to help you convince the debtor to pay. Collection agencies may only agree to work for businesses. Registering the judgment first may help persuade the judgment debtor to pay.

What should I tell the judgment debtor?

Tell the judgment debtor that the court has made a judgment in the case. You may agree to accept payment in full or on a specified schedule. You can remind the judgment debtor of the following consequences of not paying:

• It can affect the judgment debtor's credit rating. This may prevent the judgment debtor from getting a loan, buying property, getting a credit card, etc.
• It can tie up the judgment debtor's property.
• You can take further legal steps including garnishee her wages or bank accounts, if the judgment debtor refuses to pay.
• The amount payable will increase with interest and costs of enforcement.

What can I do if the judgment debtor does not pay?

If the judgment debtor does not pay you, you can take legal steps to start the enforcement process. However, first you may want to consider your options.

What should I consider when deciding how to proceed?

Ask yourself these questions:

Can the judgment debtor pay?
You should find out about the judgment debtor's income and assets. Try to find out whether he or she has enough equity in them to cover the judgment. For example, is the judgment debtor still making payments on the new car in the driveway? Consider that a forced sale may not yield the full value of the property.

Are there other creditors and where do you stand?

Find out if there are other creditors who are trying to enforce claims against the debtor. You have to share any proceeds proportionately with other creditors. Remember, if other creditors are secured creditors you may not benefit by seizing and selling the property. A secured creditor has a lien on a specific piece of property tied to a loan, like a mortgage, and will have priority over you.

What expenses will there be?

The proceedings and investigations may involve fees and other expenses.

How much time and effort are necessary?

It is up to you to decide how much time and money to invest.

You can use any of the available options, but you cannot collect more money than is due to you. Sometimes it is worth the effort and expense to enforce a judgment. However, there is no guarantee that you will get full payment. So it is up to you to decide how much time and money you will put in.

III. INVESTIGATING THE JUDGMENT DEBTOR

Can I investigate the judgment debtor myself?

No, but you can hire a paralegal to try to get information about the judgment debtor's financial state. You can try to find out: if the judgment debtor can pay you; what the debtor owns; and how much equity he or she has in it. This information may help you decide what to do. Remember you are not getting paid for your time.

Here are some steps you might take to find out about the debtor's financial situation.

Do a search on the Personal Property Registry System (PPRS) to see if there are other registrations against the judgment debtor's personal property. The search costs $5. The paralegal who performs the search will charge you for this service.

• Find out if the judgment debtor owns land by searching under his or her name at the Land Titles Office/Regsitry Office. There is a fee for this service. You can find out the property location, the tax account number, the assessed value of the property, and whether the property is a registered Land Titles parcel.
  
  
• Find out if there are other judgment creditors by checking at the sheriff's office, the clerk's office or the Land Registry. There are fees for these searches.
  
  
• Contact other judgment creditors to see if they are willing to share information with you.
  
  
• Do a search at the Motor Vehicles Registration Office to find out if the judgment debtor owns any vehicles, such as a car or snowmobile. Make your request in writing, including the reason for your search and an $8 search fee. If there is more than one vehicle, you can get a complete list upon payment of $8 for every vehicle.
  
  
• Look at past cheques to or from the judgment debtor to find a bank account number and bank branch. Also, you or your bank can do a credit check if you belong to a credit bureau.

Can I make the judgment debtor tell me about his or her ability to pay?

If the judgment debtor refuses to say whether he or she can pay, you may get a court order to have the judgment debtor submit to an examination.

There are two examination procedures. With an Arrest and Examinations Act examination, the clerk of the court presides over the examination. The judgment creditor and the clerk ask questions about the judgment debtor's assets and ability to pay. The judgment debtor must answer the relevant examination questions. If the debtor can pay, the clerk may make an order to pay by installment. If the judgment debtor does not respect the order, you will need a lawyer to take civil action for contempt of a court order. There is also an examination procedure under the Rules of Court. This procedure is rarely used for small claims judgments. You should consult a lawyer to prepare for this examination.

IV. ENFORCING THE JUDGMENT

What if I decide that it is worthwhile to try enforcing the judgment?

Remember, you must register the judgment in the PPRS before you start these proceedings against personal property.

There are two main procedures to enforce a judgment:

• seizure and sale, and
• garnishment.

What is an Order for Seizure and Sale?

It is a court order which directs the sheriff to try to seize and sell some of the judgment debtor's property to pay the judgment. To get one, take your judgment and a copy of your verification of registration in the PPRS to the clerk at the Court of Queen's Bench. Ask for an Order for Seizure and Sale (called Form 61A). Fill it out completely and take the order and a copy of your verification of registration in the PPRS to the sheriff's office. Do this in a district where you think the judgment debtor has property. The order is enforceable throughout the province.

Some property is exempt from seizure and sale. This includes some furniture and appliances, as well as one motor vehicle to a certain value. Property which is not exempt is called exigible. All exigible personal property must be sold before you can seize and sell land. It is advisable to consult a lawyer if you are going to try to seize and sell land.

How does an Order for Seizure and Sale work?

Once you have given the order to the sheriff, he or she will ask for instructions in writing, as well as payment of a $75 registration fee. The sheriff may ask for a security deposit to be sure that the Sheriff's Office can cover anticipated expenses of seizure and sale.

You can give any accurate information that you have about the judgment debtor to the Sheriff's Office. This will help the investigation and speed up the process. You can include the debtor's name, street address (not just mailing address) with apartment number, place of employment, and so on. You can also give specifics about the judgment debtor's property you want the sheriff to seize and sell. Make sure the information is accurate, because you may be liable for damages if it is not. The sheriff will usually give the judgment debtor a demand to settle the matter within fourteen days before proceeding further because costs will increase as the procedure continues. This is the reason for the security deposit.

The sheriff will try to recover enough money from the seizure and sale to pay you and cover any additional expenses. Additional costs could include locksmiths, storage and labour, advertising, etc. Note that you may lose your security deposit if the sheriff does not recover enough money to cover expenses. The sheriff will do as much as possible to successfully execute the order and then return it to you indicating what happened.

What happens to the money from the seizure and sale?

If you are the only creditor and the amount of money recovered is less than $750, the sheriff will give it to you after recouping costs. If the sheriff recovers more than $750, the sheriff will hold the money for thirty days in case of other creditors. If the other creditors make a claim on the money recovered, they will receive a share in proportion to their claim. Also, certain creditors may have priority over you, such as banks and government agencies. They will have first claim to the money. You will receive your share of the money after priority creditors get theirs.

What is garnishment?

Garnishment is a court order demanding that a third party who owes money to a judgment debtor pay the judgment creditor instead. For example, if the judgment debtor has a bank account with money in it, the court can require the bank to pay you. It does not apply to wages, so the court will not order the debtor's employer to pay the debtor's wages to you. To get a garnishment order, you must apply to the court. This is a complex procedure and you will need to consult a lawyer. If you think that the judgment debtor has surplus income, you may be able to get a payment order (See examinations section).

What else should I know?

• If the judgment debtor goes bankrupt, the rules change completely. You will not be able to continue with enforcement proceedings.
• Many potential complications may arise during the enforcement process. For example, there may be a dispute about who really owns the property, property may be jointly owned, or there may be security interests.
• After you receive complete payment for the judgment, you must discharge a Notice of Judgment at the PPRS within 30 days.