The Road to Recovery

THE ROAD TO RECOVERY By Kimberly Hui, Lawyer, Haddock & Company Lawyers

Collecting your monetary order

An arbitration at the Residential Tenancy Branch (RTB) can be a long and arduous journey but obtaining a monetary order against your tenant often makes it worthwhile. For the purposes of this article, I will outline the various methods in recovering the debt owed to a landlord by a tenant.

Monetary orders are official documents that are enforceable through the courts. The RTB does not enforce orders. Instead, the successful party can file the monetary order at Small Claims Court to enforce the order.

The first major consideration before taking the road to recovery is to determine how you can collect the amount you are owed costeffectively. You have already lost money — you do not want to lose more money attempting to collect a debt from an individual where there is no practical ability to do so.

There are a few cost-effective searches that may be undertaken by a landlord that may help determine if pursuing the debtor is worthwhile.

LOCATE THE DEBTOR

Debtors may remain in place in the rental unit or they may have departed the unit without leaving a forwarding address. Trying to collect money from a debtor is very difficult if you cannot find them. A skip tracer may need to be hired to locate the debtor.

TAKE STOCK OF WHAT YOU ALREADY HAVE

You may already have useful information about the debtor. For instance, copies of voided or cancelled cheques and banking information is very valuable when considering execution options. Knowing the debtor’s employer can also be important. You may also have motor vehicle information collected as part of any parking allocation at the rental property.

TYPICAL SEARCHES

There are many public record search avenues that can be examined.

• Land Title Search — the debtor may have an interest in land that can be attached and sold to satisfy the debt. Use the debtor’s name to find interests in land in the name of the debtor.

• Personal Property Registry Search — this is where you will find listings of property owned by individuals or companies that have financing. For instance, most, if not all car loans are registered here.

You can search the registry using the name of the debtor. Besides listing property owned by the debtor, you may also find useful contact information.

• Business License Search — Such searches may reveal if the debtor owns or operates a business, where the business is located and the type of business. The information can be requested from local government (City Hall).

• Court Registry Searches — this search reveals whether the debtor has any claims for or actions against. A search of the file can reveal what other people already know about the debtor.

• Manufactured Home Registry Searches — This search reveals whether the debtor is the owner of a manufactured home.

• Internet Searches — There is a wide range of information that can be turned up by undertaking a simple internet search. However, be aware of privacy legislation regarding social media sites such as

Facebook, Twitter, LinkedIn and Instagram, among others. Do not attempt to gain access to an individual’s account.

Once you determine it is worthwhile to pursue the debtor, you must serve the monetary order onto the tenant, which is final and binding. You must provide a reasonable deadline for payment to the tenant. If the tenant defaults and fails to make payment to you, you must contact the RTB to confirm whether the tenant has applied for a review consideration application. Once you confirm a review consideration application has not been made within the allotted time or has been made but dismissed, you are able to enforce the monetary order.

To apply to Small Claims Court for enforcement of the monetary order, you must file the monetary order and provide the Small Claims Court Registry with proof of serving the monetary order onto your tenant. Once these documents have been filed, you can look into which method best applies to collecting the judgment from your tenant.

There are various methods by which a landlord might attempt to collect from a debtor in the Small Claims Court.

• Payment Hearing — A payment hearing is a hearing before a Judge or Justice of the Peace to determine that debtor’s ability to pay and to consider whether a payment schedule should be ordered.

In order to take advantage of this procedure, you must know where the debtor is as you will be required to effect personal service of court documents on the debtor.

This can be an effective tool as it is rather intrusive on the debtor. It forces the debtor to attend at court before a Judge or Justice of the Peace and explain in person why they cannot pay the outstanding judgement. Failure to show up at the hearing could result in a warrant for the arrest of the debtor — quite a down-side for an individual wanting to avoid payment.

The landlord may want a hearing to set up a payment schedule. A landlord may want a payment schedule to ensure that some effort will be made to pay off the judgment debt. The court will examine the debtor’s ability to pay.

ORDER FOR SEIZURE AND SALE

An order for seizure and sale is a procedure in which property belonging to the debtor can be seized and sold at public auction. The net proceeds of the sale, of any, are provided to the creditor.

In order to take advantage of this procedure, you must know where the debtor is as you will be required to effect personal service of court documents on the debtor and you should have some idea of what assets are available for seizure and sale or the process is not of any economic benefit. You may have obtained the required information at the Payment Hearing.

A landlord may ask the registrar for an order for seizure and sale if a payment schedule has not been ordered, or if it has not been complied with. The landlord may suggest the particular property should be seized — for example, a car or computer — or that general property of the debtor be seized or sold. There are certain goods that are exempt from forced seizure or sale such as the debtor’s necessary clothing, household furnishing, medical and dental aids, etc.

EXECUTION AGAINST LAND

If the debtor owns land in British Columbia, the landlord may register the judgment against the land. Registration against the land may allow payment of the judgment on any sale or transfer of the property, depending on the price and the priority of the judgment. It will usually prevent the debtor form selling or mortgaging the property until the debt is paid.

GARNISHMENT

This process allows the landlord to attach a garnishment to money in bank accounts or to partially attach a garnishment to wages.

In order to take advantage of this procedure, the landlord must know where the debtor is located, know the exact branch that the debtor banks at and/or the name and location of the debtor’s employer.

Keep in mind that you cannot collect a debt from someone that does not have any assets or income. As such, it is important to first determine whether it will be worth your time and efforts to collect a monetary order in the first place. Seeking advice from a lawyer at an early stage can assist you in making an informed decision about whether going down the road to recovering a debt will be worth the trouble.

Disclaimer: This article is for general information purposes only and not intended as or to be relied upon for legal advice. If you have a situation regarding a collections matter, contact a lawyer for legal advice.

Kimberly Hui is a lawyer at Haddock & Company in North Vancouver. She advises on all aspects of strata property law, landlord and tenant law, co-operative housing law and human rights complaints that arise from these practice areas.