Consumer Affairs appreciates that there are many debtors that have entered into debt repayment plans with their creditors or debt collections agencies whereby it is agreed that the debtor make monthly payments toward an outstanding debt (i.e., pay outstanding day care fees, social utilities, etc.)
However, there are circumstances where a creditor or debt collection agency may consider taking a debtor to court, in response to a debtor’s inconsistent compliance with a debt repayment plan. The purpose of taking the debtor to court is to:
By pursuing legal proceedings against a debtor, and obtaining judgement, a creditor or debt collection agency has the legal authority to pursue repayment against their debtor for up to 20 years. In support of the pursuit of legal proceedings, and the enforcement of judgement, a creditor or debt collection agency may appoint a bailiff to act on their behalf.
It is important to note at this stage to note the role a bailiff may play when a creditor or debt collection is considering legal proceedings against a creditor. A creditor or debt collection agency may appoint a bailiff to attend the residential address and/or place of employment of a debtor in order to:
The value in appointing a bailiff is that a creditor or debt collection agency may be able to rely on the appointed bailiff to act as a witness to verify that adequate notice of legal proceedings and dates to appear in court were provided to the debtor (i.e., the notice was delivered and the debt or accepted delivery). This is particularly useful if the debtor attempts to dispute that the legal documents were was not delivered to them and were not made aware of their required attendance in court.
The purpose of this section is to provide consumers with guidance on when they may be faced with legal proceedings and/or confronted by a bailiff and how to manage such interactions.
As part of the commencement of legal proceedings a creditor or debt collection agency will mail a “Letter Before Action” to the last known residential address or place of employment of a debtor. In such a circumstance the creditor or debt collection agency may appoint a bailiff to personally serve the debtor with the Letter Before Action.
The Letter Before Action will inform the debtor that:
If a bailiff attends your residential address or place of employment, to serve you with a Letter Before Action, Consumer Affairs advises that you request the bailiff to provide the following information:
In circumstances where a debtor:
The creditor or debt collection agency that issued the Letter Before Action may appoint a bailiff to serve the debtor with an Ordinary Summons.
The purpose of an Ordinary Summons is to formally communicate to the debtor of their debt held with a creditor and inform the debtor that they are obligated to attend court on a specified date in order to either:
If a bailiff or process server attends your residential address or place of employment to serve you with an Ordinary Summons, Consumer Affairs advises that you request the bailiff or process server to provide the following information:
It is important to note that if you are not present at your residential address or place of employment at the time the bailiff or process server attempts to serve the Ordinary Summons, a bailiff or process server may:
When you receive an Ordinary Summons, Consumer Affairs advises that you make sure the Ordinary Summons contains the right information. A valid Ordinary Summons must contain the following information:
If the Ordinary Summons does not contain the right information (i.e., the debt belongs to your child or family member), or you are of the view that you do not owe the debt (i.e., the debt belongs to someone else or you have previously paid the debt in full), or the amount of debt stated is incorrect, Consumer Affairs advises that you contact the creditor or debt collection agency immediately and discuss the observed issue.
As part of your discussions with the creditor or debt collection agency, Consumer Affairs recommends that you provide copies of any evidence supporting your position (i.e., a copy of an invoice or bank statement indicating that you paid the debt in full).
If the creditor or debt collection agency refuses to acknowledge your attempts to discuss the errors in the Ordinary Summons, it is advised that you attend court on the date specified in the Ordinary Summons.
If you fail to attend court the creditor or debt collection agency will request “judgement in default” and issue a Judgement Summons against you. Consequently, your ability to dispute the debt will be negatively impacted as the purpose of attending court is to state your position.
If you are of the view that the information contained in the Ordinary Summons is correct and you owe the debt, Consumer Affairs advises that you contact the creditor or debt collection agency immediately to discuss an informal repayment plan and request that the Ordinary Summons be pulled from the court listing.
If you fail to comply with the repayment plan the creditor or debt collection agency will likely have their matter relisted in court and a follow-up Ordinary Summons issued on you. It is important to note that each time your debt is listed and re-listed in court this will result in additional administrative fees being included onto your outstanding debt.
Consumer Affairs appreciates that there will be circumstances where a creditor or debt collection agency will issue a Judgement Summons against a debtor in the event that the debtor:
The purpose of a Judgement Summons is to inform the debtor that they are obligated to attend court in order to either:
By being in possession of judgement against the debtor (i.e., “judgement in default”, debtor admittance of fault while attending court on an Ordinary Summons or judgement being awarded following trial), the creditor or debt collection agency has the authority to appoint a bailiff process server to serve the debtor with a Judgement Summons.
If a bailiff or process server attends your residential address or place of employment, to serve you with a Judgement Summons, Consumer Affairs advises that you request the bailiff or process server to provide the following information:
It is important to note that if you are not present at your residential address or place of employment at the time the bailiff or process server attempts to serve the Ordinary Summons, in order to effectively serve a Judgement Summons a bailiff or process server may:
When you receive a Judgement Summons, Consumer Affairs advises that you make sure the Judgement Summons contains the right information. A valid Judgement Summons must contain the following information:
If the Judgement Summons contains the correct information, and you do not dispute the debt, Consumer Affairs advises that you contact the creditor or debt collection agency immediately and enter into an informal repayment plan. Consequently, the creditor or debt collection agency will have your matter delisted from court.
Failure to comply with your agreed repayment plan will likely result in having your matter being relisted in court. It is important to note that each time your debt is listed and re-listed in court will result in administrative fees being included in your outstanding debt.
If the Judgement Summons does not contain the right information (i.e. the debt belongs to your child or family member), or you are of the view that you do not owe the debt (i.e., the debt belongs to someone else or you have previously paid the debt in full), or the amount of debt stated is incorrect, Consumer Affairs advises that you contact the creditor or debt collection agency immediately and discuss the observed issue.
As part of your discussions with the creditor or debt collection agency, Consumer Affairs recommends that you provide copies of any evidence supporting your position (i.e., a copy of an invoice or bank statement indicating that you paid the debt in full).
If the creditor or debt collection agency refuses to acknowledge your attempts to discuss the errors in the Judgement Summons, Consumer Affairs recommends that you attend court on the date specified in the Ordinary Summons.
If you fail to attend court on a Judgement Summons, the creditor or debt collection agency will have the authority to request permission from the courts to issue a “Warrant of Arrest”. Upon receiving permission to issue a Warrant of Arrest, the creditor or debt collection agency will likely appoint a bailiff to serve the Warrant of Arrest against the debtor. If you are served with a Warrant of Arrest, you will be arrested by the bailiff and brought to court to enter into a repayment plan.
Additionally, if you fail to attend court on a Judgement Summons, and failed to attend court after receiving an Ordinary Summons (see above), your ability to dispute the debt will be rendered void. Failure to attend court on an Ordinary Summons affords creditors or debt collection agencies the opportunity to obtain “judgement in default”.
By attending court on a Judgement Summons, debtors are afforded the opportunity to provide a valid explanation for their non-attendance on the Ordinary Summons (i.e., medical emergency) and request the “judgement in default” be rendered void.
Consumer Affairs appreciates that there will be circumstances where a debtor will be forcibly brought to court in order to address a debt they have with a creditor or debt collection agency.
The purpose of a Warrant of Arrest is to force a debtor’s attendance due to one of the following events having occurred:
Having discussed the nuances associated with Ordinary Summons and Judgement Summons (see above), Consumer Affairs appreciates that there will be circumstances where a creditor or debt collection agency needs to issue a Warrant of Arrest in order to:
By being in possession of judgement against the debtor (i.e., “judgement in default”, debtor admittance of fault while attending court on an Ordinary Summons or judgement being awarded following trial), the creditor or debt collection agency has the authority to appoint a bailiff to serve the debtor with a Warrant of Arrest.
If a bailiff attends your residential address or place of employment to serve you with a Warrant of Arrest, Consumer Affairs advises that you request the bailiff or process server to provide the following information:
When you receive a Warrant of Arrest, Consumer Affairs advises that you make sure the Warrant of Arrest contains the right information. A valid Warrant of Arrest must contain the following information:
If you can prove that the Warrant of Arrest does not contain the right information (i.e., the debt belongs to your child or family member), or you are of the view that you do not owe the debt (i.e., the debt belongs to someone else or you have previously paid the debt in full), Consumer Affairs advises that you:
If you are in receipt of an incorrect Warrant of Arrest (i.e., wrong names listed and/or debt belongs to someone else), you are not obligated to leave your residential home or place of employment in order to attend court.
Consumer Affairs recommends that you contact the creditor or debt collection agency that had the Warrant of Arrest served and discuss the observed issue. As part of your discussions with the creditor or debt collection agency, Consumer Affairs recommends that you provide copies of any evidence supporting your position (i.e., a copy of an invoice or bank statement indicating that you paid the debt in full).
If you find yourself arrested and forced to attend court on a Warrant of Arrest, and you have not previously been served with an Ordinary Summons or Judgement Summons, Consumer Affairs advises that you request the courts to go through your court file and provide:
By reviewing the above mentioned documentation you will be able to confirm whether the Ordinary Summons and Judgement Summons were effectively served on you. If adequate service was not performed the courts may afford you the opportunity to:
However, if it can be shown that an Ordinary Summons and Judgement Summons were effectively served on you, your failure to attend court resulted in you losing your ability to dispute liability for the bill. At this stage the only option that you have available is to enter into are payment plan for the debt.
A Committal to Prison is the highest form of escalation available to a creditor or debt collection agency seeking to recover a debt. A Committal to Prison is exercised following:
Similar to a Warrant of Arrest, a Committal to Prison is intended to force a debtor’s attendance in court due to the debtor’s non-compliance of an agreed repayment schedule.
Following a debtor’s attendance in court for a Warrant of Arrest, the creditor or debt collection agency will now be in a position to issue a Committal to Prison. If a debtor or creditor issues a Committal to Prison on a non-compliant debtor, the debtor will be forced to attend court and make an immediate payment towards their debt and their repayment arrears (i.e., the repayment payments they are behind on).
For example, if a debtor has failed to make their last 7 debt repayments, at $50.00 per month, and is served a Committal to Prison, it likely that the debtor will have to pay the courts $350.00 by end of day (i.e., 7 payments x $50.00 per month).
If a debtor is brought before court on a Committal to Prison, and is unable to make a payment towards the outstanding debt, the creditor or debt collection agency will be entitled to request the courts to exercise their “default” clause (i.e., face 7 days in jail).
If a debtor is unable to make a payment and the creditor or debt collection agency exercises their default clause, the completion of an imprisonment period does not void the debt. That upon being released from prison, the debtor remains liable for repayment of the outstanding debt and may be brought before the court again on follow-up Committals to Prison if they continue to not make payments towards their debt.
As part of the issuance of a Committal Prison, creditors and debt collection agencies will be empowered to appoint a bailiff to:
If a bailiff attends your residential address or place of employment, to serve you with a Committal to Prison and force your attendance in court, Consumer Affairs advises that you request the bailiff or process server to provide the following information:
When you receive a Committal to Prison, Consumer Affairs advises that you make sure the Committal to Prison contains the right information. A valid Committal to Prison must contain the following information:
If the Committal to Prison does not contain the right information (i.e., the debt belongs to your child or family member), or you are of the view that you do not owe the debt (i.e., the debt belongs to someone else or you have previously paid the debt in full), Consumer Affairs advises that you:
If you can prove that you are in receipt of an incorrect Committal to Prison (i.e., wrong names listed and/or debt belongs to someone else), you are not obligated to leave your residential home or place of employment in order to attend court. Bailiffs are obligated to ensure that the information on a Committal to Prison is accurate; otherwise the Committal to Prison is not enforceable.
Immediately following communication of the error in the Committal to Prison to the bailiff, Consumer Affairs Recommends that you contact the creditor or debt collection agency that had the Committal to Prison served and discuss the observed issue.
As part of your discussions with the creditor or debt collection agency, Consumer Affairs recommends that you provide copies of any evidence supporting your position (i.e., a copy of an invoice or bank statement indicating that you paid the debt in full, driver’s license indicating that you are not the person named in the Committal to Prison).
If the creditor or debt collection agency refuses to acknowledge your attempts to discuss the errors in the Committal to Prison, Consumer Affairs recommends that you have your supporting evidence readily available at all times in the event that you receive a follow-up Committal to Prison and are forced to attend court. In this circumstance you will likely need to provide the courts with your supporting evidence in order to have the Committal to Prison dismissed.
If the debt is not yours, you find yourself arrested and forced to attend court, and you have not previously been served with an Ordinary Summons or Judgement Summons, Consumer Affairs advises that you request the courts to go through your court file and provide:
By reviewing the above mentioned documentation you will be able to confirm whether the Ordinary Summons, Judgement Summons and Warrant of Arrest were effectively served on you. If adequate service was not performed, the courts may afford you the opportunity to:
However, if you find yourself forced to attend court, due to a Committal to Prison, and it can be shown that an Ordinary Summons and Judgement Summons were effectively served on you, your failure to attend court will render you unable to dispute your liability for the bill. At this stage the only option that you have available is to make an immediate payment towards your repayment arrears.
