Enforcement of Judgments
What is a Judgment?
When the Court hears a case it will deliver a decision, which can be formalized in a judgment at the request of either party. The judgment is a declaration in favour of the successful party. The judgment sets out the obligations of the losing party. This is often an obligation for the payment of a sum of money by the losing party to the successful party.
What is enforcing an Order?
Some people believe that when a trial or process is over and the Judgment is delivered, the winner will be paid immediately and the matter will be put to rest. Sometimes this is what happens, but other times the Judgment is only the beginning of a long process.
Although the court issues judgments, it is not the court’s responsibility to collect money. Therefore, if the debtor (the party against whom the Order has been issued) does not voluntarily pay, the creditor (the person seeking to get paid) must enforce the Judgment. The Court does provide services to collect money, but it is up to the creditor to use them. Enforcing a Judgment is not free; the creditor has to pay the Court fees up front. Some of these fees can be added to the amount owed by the debtor.
How do you collect on a Judgment?
There are a number of different ways to collect on a Judgment. The method you choose will depend on the debtor’s financial situation.
First, if you have not received immediate payment, start by registering the Judgment in the Personal Property Registry. A registered Judgment acts like a charge or a lien against the debtor’s property by binding the property and therefore making the sale or the mortgage of the property difficult. By registering the Judgment you may get paid if the debtor decides to sell or mortgage that property. The debtor might also want to pay the judgment to clear his or her credit rating. As a creditor, you cannot begin enforcement proceedings until the Judgment has been registered.
How do I register a Judgment?
Registration against personal property:
There are two property registries in New Brunswick . For property other than land, you can register the Judgment in the Personal Property Registry. This Registry is Province-wide and the cost to register the Judgment is set out in the General Regulation - Personal Property Security Act .
Registration against land and buildings:
If you wish to register your Judgment against land and buildings owned by the judgment debtor, you can register your Judgment with the Land Registry. To do so, you must first obtain a certified copy of the Judgment upon payment of a fee. You must then take your certified copy to the Registry Office of the County in which the debtor’s land is located. Once your judgment is registered, it will remain in effect for five years. You may then re-register the judgment prior to the expiry of the first registration period.
Personal Property and Land Registry Offices throughout the Province of New Brunswick :
What are my options if the debtor still does not want to pay the Judgment ?
Remember that you must register your Judgment before you can commence proceedings to enforce it.
After you have completed all of the registration requirements, there are additional procedures necessary to enforce your Judgment if the debtor has not paid you in full. This is referred to as “enforcing a Judgment”. There are three main procedures for enforcing a Judgment. Seizure and Sale , Examination of the Judgment Debtor and Garnishment.
1) Seizure and Sale
This process allows the sheriff to seize the debtor’s property and sell it so as to pay all or part of the judgment.
To get an Order for Seizure and Sale , you must take your judgment and a copy of your registration in the Personal Property Registry System (“PPRS”) to the Clerk of the Court of Queen’s Bench and ask for an Order of Seizure and Sale . Once the Order is filled out, take it to the Sheriff’s Office. The sheriff will ask for your instructions and the payment of a fee. You will be asked to provide the debtor’s name, address, place of employment and other pertinent information. You may also provide specifics for the personal property you want seized and sold, but be sure to be ACCURATE, because you can be held liable for damages if the information is inaccurate.
The money has been seized, but how do I get it?
If the recovery following the seizure and sale is less than $750, the sheriff will pay it out after adjusting costs. If the recovery of the seizure and sale is more than $750, the sheriff will hold the money for 30 days in case there are other creditors.
What happens if someone wrongfully enforces an Order against you?
If you believe that an enforcement Order was wrongfully issued or executed against you, you may apply on motion, to have the Order set aside, and to have the return of any property improperly seized or taken.
2) Examination of Judgment Debtor
Another option available to a judgment creditor is a procedure whereby the judgment debtor is compelled to appear at a specified time and place to be questioned as to his or her capacity to satisfy the amount owed.
This procedure can yield fruitful results in that:
A judgment debtor can be examined (questioned) in one of two ways:
Examination by the Clerk of the Court of Queen’s Bench
This procedure requires the judgment creditor to prepare a draft order for the Clerk’s signature compelling the judgment debtor to appear before the Clerk at a set time and place. The judgment creditor must also pay a fee in the amount of $25.00 for this service. However, the judgment creditor is entitled to add the payment of this fee to the judgment debt.
The judgment creditor must also file with the Clerk an affidavit showing:
(a) the amount of the judgment and when and in what court the same was recovered, or in the case of an order for payment, showing that such order was made and the amount payable thereunder;
(b) that the money or some specified portion thereof, owing or payable under the judgment or order, as the case may be, has not been recovered or paid, and is still owing; and
(c) in the case of an application for an order to examine a person other than the judgment debtor, the belief of the deponent that the person sought to be examined has knowledge concerning, or has possession of information respecting some of the matters to be inquired into.
Usually, paragraph (c) doesn’t apply because, in the vast majority of cases, the judgment creditor only wants to have the judgment debtor examined.
Once the Clerk of the Court of Queen’s Bench has inscribed the date, time and place on the draft order for examination, signed and sealed the order, the order is returned to the judgment creditor so that it can be served on the judgment debtor.
When the judgment creditor effects service on the judgment debtor, “conduct money” must also be provided to the judgment debtor. Conduct money is fixed by law at 12 cents per kilometer for travel going and returning between the place of service and the place of examination. At the time of the examination, the judgment creditor can make a request to the Clerk that the conduct money required to be tendered be added to the judgment amount.
This procedure is used less often than the examination before the Clerk. When it is used, there is usually a lawyer representing the judgment creditor. It is a fact-finding exercise only, because there is no person in authority present who could order the judgment debtor to make periodic payments.
Rule 61.14(6) stipulates that “unless ordered otherwise or provided otherwise by this rule, the procedure prescribed by Rule 33 applies to an examination under this rule.”
3 ) Garnishment
Garnishment allows a creditor, in certain circumstances, to pursue the debtor’s financial sources (other than his or her salary) to obtain the money owed (garnishment does not allow you to obtain the payment of the sum owed from the debtor’s salary). An application for garnishment can be made to the Court of Queen’s Bench on affidavit setting out that the whole or part of the sum remains unsatisfied and unpaid. This is a complex procedure and you should consult a lawyer to assist you with this type of application.
Where can I find more Information?
The enforcement of a judgment can be a complicated process. It is recommended that you consult a lawyer. For more information on enforcing a judgment