Debt Collections | Debtor Creditor
Someone Owes You Money - What can you do? The following are examples of some of the remedies you can pursue to collect money owing to you. Please contact me if you would like my assistance.
Most people in financial difficulty will pay those that are pressuring them for payment and leave the others unpaid until a later date. The most effective way to deal with a collection problem is "head on". Call and write the person who owes you money. Ask them for payment now. If you think that payment in full is unlikely to happen immediately, consider accepting payments over time and ask for post dated cheques. The longer you wait, the less likely they will feel obligated to pay.
Small Claims Court
If the amount owing to you is $30,000.00 or less, you can sue through the Small Claims Court in Saskatchewan. The legal name for this level of court in Saskatchewan is the Provincial Court. Phone them for an appointment to discuss getting the necessary documents issued and served. If you are owed more than the Small Claims limit but are prepared to write you claim down to this limit, you can still proceed through this court. Keep in mind that in the larger cities at least, it will usually take you a few months to get to the first court date. That is only a date for you to meet with a judge and the defendant to see if the claim is contested or can be settled. If not, the court will book a trial date that will again be a few months away. On very small claims, the court will make you write out your entire case like a story as part of your presentation.
Queen's Bench Court
If the amount owing is more than the Small Claims Limit and you don't want to write off the excess, then you'll need to sue through the Court of Queen's Bench. While it is not impossible for an individual (not a corporation) to represent himself or herself, it is rarely done and difficult. You'll probably need a lawyer to help you. The lawyer will issue a statement of claim and have it served on the defendants. If they do not respond within 20-30 days of being served, depending on the circumstances, the lawyer can enter a "default judgment". If the claim is contested, then it needs to follow the court process through to a trial. For more in formation about this, see my article about civil Court Proceedings.
Judgment doesn't guarantee payment
A judgment is essentially a statement by the court that the defendant is adjudged to owe you a specified sum of money. It doesn't guarantee payment. Once you have judgment, you'll need to enforce it unless the defendant makes voluntary payments. Aside from a poor credit rating, there are few consequences for failing to pay a judgment unless the creditor takes enforcement action. A judgment has a 10 year life and will expire unless you make a court application to renew it before the time expires.
Enforcing Payment on a Judgment
These are a few actions that I can take to enforce payment under a judgment:
- Garnishee wages or a bank account or other money owing to the defendant. You need a judgment to garnishee wages. The garnishee process is handled through the Sheriff's office and any amount collected is shared pro rata with other judgment creditors.
- Register the Judgment against Goods and Lands through the land titles system and the personal property registry. It doesn't always get instant results but in the long term, often helps to collect an unpaid judgment. A judgment has a 10 year life and will expire unless you make a court application to renew the judgment before the time expires.
- Hire the Sheriff to pay a visit to the debtor to try to seize assets under the judgment. When the debtor is an individual, however, many assets, are exempt from seizure. An example is a certain amount of equity in a motor vehicle, furniture, tools of the trade, a certain amount of equity in a home, etc. Whatever is collected is shared pro rata with other judgment creditors. The process is far from speedy, but the alternative is no payment at all.
If you provided services or materials to a specific land location to make improvements to the land (such as an unpaid plumbing or roofing bill), then you can register a Builder's Lien against the debtor's interest in the land. In some cases, a court action can be commenced to ask for a judicial sale of the land to pay your claim, but the process to ask for a court sale is expensive and therefore not practical unless your claim is for a larger amount. However, just by registering a lien, you will have the owner's attention and they will need to deal with you when they mortgage or sell the property. In some cases, an owner may dispute your claim and apply to "lapse" your lien. That can force you to commence a court action, obtain a court certificate and register it at land titles in order to keep the lien on title. You would also need to follow through with the court action to a trial within 2 years from commencing the action. If you don't, you could lose all or some of your rights.
If you supplied services or materials to improve goods (something that is not land) such as a car, a piece of equipment or work to a building that is not attached to the land then you have a Commercial Lien instead of a Builders' Lien. There is a process available where, depending on the circumstances, I may be able to help you have the item seized for non-payment. However, in most cases, you need to either have a something signed by the debtor that acknowledges the debt (such as a cheque for partial payment ... even if it was NSF) or a signed work order. If you don't have that but you are still in possession of the item, you may be able to enforce the lien. If not, you would need to consult further with a lawyer to see if you can enforce your commercial lien.
If you have a mortgage against land or security interest in personal property, I can help you with the enforcement process.
Most limitation periods are 2 years from the date the right to sue first arose. By way of example, a two year time limitation that begins running on July 1 2013 will expire on June 30 2015 unless the court is closed that day, in which case an action can typically be commenced the next day they are open. In some situations, the time can be extended, such as a when the debtor makes a payment on account or where the debtor provides a written acknowledgment of the debt. If a time limitation expires without a legal action being properly commenced at court, the right to sue is typically lost.
Some different types of matters may have different time limitations. The rules are too complex to set out in this article. Some time limitations may be much shorter. For example, a claim against a municipality must be issued at court and served on the municipality all within 1 year of the cause of action arising (calculated as one year less a day). You can also agree to extend a limitation period in a contract. Therefore, you must remember that the above is a general rule only. It may not apply to your situation. Rather than relying on the general rule, you should consult a lawyer to find out exactly what your time limitation is.
Notice: The information on this website is general in
nature only. It relates to Saskatchewan, Canada and may not be
applicable in your jurisdiction. It does not constitute legal
advice to you and no solicitor client relationship will be established.
You should seek specific legal advice regarding your circumstances
from a lawyer entitled to practise law in your jurisdiction.
www.rickcarlson.com | Mon, 23 Oct 2017 12:01:31 CDT1