Legal Blog: Collections

Aug
14
2017

Contempt

Greenberg v. Nowack 2016 Ont CA

2363523 Ontario Inc. v. Nowack 2016 Ont CA

These cases involve the same judgment debtor, with different judgment creditors. In each case, the debtor was supposed to invest the creditors’ money and, somehow, the money disappeared. Each judgment was in the millions of dollars. In each case, the debtor was ordered to produce all financial transactions, bank statements, cheques etc so that money given to him could be traced. In each case, the debtor ignored the various orders, stalled, and prevaricated. In each case, the creditors brought civil contempt proceedings. In Greenberg, the motions judge thought it necessary for a creditor to prove that the debtor wilfully and deliberately disobeyed the relevant order. The Court of Appeal held that all that was required was an intentional act or omission that breached the order. The Court sent the matter back to another Superior Court judge for determination. In 2363523 Ont, the creditor was further along and had obtained not only a determination of contempt, but a 30 day jail sentence for the debtor. The debtor appealed. The Court dismissed the appeal and gave the debtor 45 days from his release to comply with the order. The Court indicated that the purpose of contempt proceedings is not to punish, but to force the contemnor to do what is ordered to be done.

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Jun
06
2017

Forever

Posted in Collections

We often write about attacking a transaction on grounds that it is a fraudulent conveyance. What does that mean; what is the remedy; and is that remedy relevant to anything outside of the action? These questions were answered in part in Guthrie v. Abakhan & Associates Inc., a 2017 decision of the British Columbia Court of Appeal. Although the language of the BC Fraudulent Conveyance Act has been updated as compared to the Ontario Fraudulent Conveyances Act, and the 1571 English Statute of Elizabeth on which both were based, the substance of the Ontario and BC statutes is still essentially the same.

Essence

Fraudulent conveyance statutes have but one purpose: to stop a debtor from successfully transferring away assets for no or inadequate consideration (i.e. payment or other value). The simplest example is a husband transferring assets to his wife to avoid having to pay his debts. With this simple transfer the family unit keeps and enjoys the asset and the husband’s creditors are left howling in frustration.

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Jun
05
2017

Injunctions, Mareva and Norwich

Trade Capital Finance Corp. v. Cook 2017 Ont SCJ

One unsecured creditor obtained a Mareva injunction, which included an order that the seized assets could not be attacked without further order of the court. A non-party, who was a judgment creditor of the defendant and had filed a writ of seizure and sale, moved to have the order vacated against it so that it could seize and sell specific assets to satisfy its judgment. The court granted the order, holding that a Mareva injunction was an injunction in general and not a proprietary injunction against specific property claimed to be owned by the unsecured creditor. Accordingly, the plaintiff, an unsecured creditor, could not hold a preferred position over the judgment creditor.

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Apr
06
2017

Sham Tenancy

Posted in Collections

A mortgagee wants to take possession of mortgaged residential premises because the mortgagor is in arrears of the payments due under a mortgage. Normally, there would be no real problem. However, if the mortgagor has leased the premises, then problems arise and the mortgagee has some additional hurdles to overcome. Toronto-Dominion Bank v. Hosein, a 2016 decision of the Ontario Court of Appeal, discusses those problems and eliminates one of them.

2017-04-06 sham tenants

 

Legislation

In the good old days, a mortgagee had priority over a subsequent tenant and, when a mortgagee had the ability to take possession of the premises from the mortgagor, ultimately the tenant had to leave. In order to rectify that imbalance of power for residential premises, the Ontario legislature amended the Mortgages Act (“MA”) in 1991 to provide security of possession to a mortgagor’s subsequent tenants. At the same time, the legislature, realising that a financially strapped mortgagor might not necessarily be honourable, allowed a mortgagee to apply to vary or set aside a tenancy agreement if it (a) had been entered into to discourage the mortgagee from taking possession of the premises or (b) adversely affected the value of the mortgagee’s interest in the premises. In other words, sham tenants are not protected.

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Apr
06
2017

Creditor Proof

Posted in Collections

The techniques in which debtors attempt to hide their assets or ensure that their creditors cannot seize them are varied and plentiful. The job of creditors’ counsel or the creditors themselves is to investigate, determine what happened to the assets, and act to recover them. In Bearsfield Developments Inc. v. McNabb, a 2016 decision of the Ontario Superior Court of Justice, the debtor had a really good plan. Just before her employer discovering her embezzlement, she transferred $206,000 into a creditor proof segregated mutual fund (which we assume had an insurance component). She was therefore able to tell her defrauded employer, who ultimately obtained a judgment against her for almost $1 million, that she was very sorry, but she had no assets to repay the employer the money she stole from it. Was she able to get away with this?

Fraudulent Conveyance

The Fraudulent Conveyances Act applies to every conveyance of real property or personal property made with the intent to defeat creditors of their lawful debts. It allows a creditor to set aside the conveyance. The employer brought an action to do just that, arguing that a transfer of seizable assets into a form of property that could not be seized was, in itself, a fraudulent conveyance.

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Apr
05
2017

Action to Collect Lawyer’s Fees

Gilbert’s LLP v. David Dixon Inc. 2017 Ont Div Ct

Law firm sued in Superior Court to collect account. Application judge dismissed the application holding that a lawyer had no right to commence an action under section 23 of the Solicitors Act unless there was a bona fide dispute as to the terms or effect of the written retainer agreement. The Divisional Court noted that the Solicitors Act was outdated and convoluted and that the Ministry of the Attorney General had under resourced the assessment process. The Divisional Court held that the law firm was entitled to commence an action to enforce a simple or usual written fee agreement, particularly one in which there is no dispute as to the terms of the retainer agreement or the outstanding account. The Court noted that this right was always subject to the client’s right to apply for an assessment of the account under section 3 of the Act.

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Feb
06
2017

Sanity

Posted in Collections

An execution creditor (i.e. a judgment creditor who has filed a writ of seizure and sale with a sheriff) has a right to request the sheriff to sell the judgment debtor’s equity in property and apply the proceeds of sale to the debtor’s executions. However, if a mortgage encumbers the property, the sheriff insists upon receipt of a mortgage statement from the mortgagee. The sheriff needs to review the statement to assess the equity in the property and ensure that it exceeds the minimum $10,000 threshold set pursuant to the Execution Act. Must the mortgagee give that statement? If the mortgagee does provide the statement, is it breaching the provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA)? These questions had previously been answered by the Ontario Court of Appeal, but the Supreme Court of Canada, in its 2016 decision in Royal Bank of Canada v. Trang, has given new answers.

Problem

As a rule, judgment debtors do not want to assist execution creditors to sell the debtors’ property out from under them. Go figure. Accordingly, debtors will not give their mortgagees explicit consent to provide a mortgage statement to their execution creditors. No mortgage statement, no sheriff’s sale.

Of course, an execution creditor can always attempt to obtain the statement from a debtor by way of a judgment debtor examination. This presumes that judgment debtors are always cooperative and never lie. Unfortunately, a debtor can stall an execution creditor for months, even years, and ensure that the creditor incurs significant costs before finally obtaining what it needs. These costs will often exceed the judgment debt or the equity in the property or both.

A creditor’s right to initiate a sheriff’s sale is no right at all if the sale cannot be carried out efficiently and economically.

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