JRSB205 (summer 2010)
Topic 2, Lesson 2, Activity 2: Civil Litigation - Enforcement
Group C
Table of Contents
Appendix A- Garnishee Summons forms
Appendix B – Writ of Enforcement forms
In participating:
Hernandez, Gustavo
1. Garnishee Summons
According to the Alberta Courts, enforcement creditor obtains authority pursuant to the Civil Enforcement Act to have a third party pay monies into court to pay off the debt of an enforcement debtor. It is a process whereby money which is owed to the debtor is diverted to his creditors. The person or business owing money to the debtor is called a Garnishee. For example, the creditor can serve a Garnishee Summons on a bank where the debtor has an account. The account can be in the name of the debtor only or can be a joint account. The bank must pay the money in the account up to the amount of all the related Writs into Court. In the case of a joint account, the bank will pay in that portion which is considered to be the debtor's. The creditor can also garnishee the employer of the debtor. The creditor must accurately complete the documents and file them at the office of the Clerk of the Court of Queen's Bench. Forms are available on the Alberta Courts web site at www.albertacourts.ab.ca or can be purchased from the Queen’s Printer.
The Garnishee Summons is addressed to the Garnishee and directs that the money be paid into court rather than to the debtor. A Garnishee Summons is in effect for one year from the date of issuance in all instances except where a bank account is garnisheed. In the case of a joint bank account, the Garnishee Summons expires the first time money is paid into court. In the case of all other bank accounts, the Garnishee Summons expires 60 days from the date it is issued. It is effective against money owed at the time the Garnishee Summons is served, as well as future obligations which may arise during the currency of the document.
A Garnishee Summons that is issued for a term of one year can be renewed for a further one year period by filing a Garnishee Summons Renewal Statement within 60 days before the expiry date of the Garnishee Summons. There is no limit to the number of times a Garnishee Summons may be renewed.
The creditor needs to present five copies of the Garnishee Summons.
See appendix A for Garnishee Summons forms; an example of the steps are (see [1] for details): within 15 days from being served with the Garnishee Summons in triplicate with a $25 compensation fee, the creditor must do the following:
- Serve
a copy of the Garnishee Summons on the debtor (personally or by ordinary
mail).
- Deliver
to the Clerk of the Court a Garnishee’s Response. See below for what this
must contain.
- Pay
to the Clerk the lesser of
(a) the amount indicated on the first page of the Garnishee Summons, or
(b) the amount payable by you to the Debtor according to your obligation to the Debtor minus $10 as a Garnishee compensation.
Where the Garnishee Summons seeks to affect a joint entitlement, the creditor must pay to the Clerk, unless a court orders otherwise, an amount equal to the total amount of the fund divided equally amongst all the people with the joint entitlement. A Garnishee Summons which seeks to attach a joint deposit account only attaches a current obligation as defined in the Civil Enforcement Act.
Garnishee Summons
Court of Queen’s Bench of Alberta
Judicial District of ________________________
Creditor _________ Le Petit
Coin de la Loi Familiale Ltd.______________________
Debtor _________Open Ceiling Corp.________________________________________
Garnishee __________ ______ Open Ceiling Corp.____________________________
This Garnishee Summons is issued on ___May 28, 2010___ for ____$ 250,000___
The Creditor intends to garnish the Debtor’s □ employment earnings
■ deposit accounts
■ money owing from other sources
______________________________________________
Clerk of the Court
________________________________________________________________
The judgment is for alimony or maintenance. □
When employment earnings are garnished for alimony or maintenance, Maintenance Enforcement Act employment exemptions apply. Refer to Maintenance Enforcement Regulation for more information.
________________________________________________________________
________________________________________________________________
This summons expires 1. in the case of a deposit account, 60 days from the date it was issued, unless it is a joint account, in which case this is only a one-time obligation.
2. in all other cases, one year from the date it was issued, unless it has been renewed.
________________________________________________________________
Supporting Affidavit
1. I am the creditor or an agent/lawyer for the creditor.
2. According to the judgment or Attachment Order, a Writ of Enforcement or Attachment Order has/has not been registered at the Personal Property Registry.
3. I believe that the proposed Garnishee owes the debtor money now or will owe the debtor money in the future.
4. The proposed Garnishee is in Alberta, or does business in Alberta notwithstanding that its payroll office is outside Alberta.
___________John Smith ________________________ Lawyer_____________
Creditor or Agent/Lawyer Occupation
Sworn in _______Edmonton_____________, Alberta on ___May 27, 2010___________
Town or city Date
________________________________________________________________
Commissioner for Oaths in Alberta
________________________________________________________________
Commissioner’s name and commission’s expiry date (please print)
2. Writ of Enforcement
According to the Alberta Courts, A Writ of Enforcement (Writ) is a document filed with the Clerk of the Court of Queen's Bench and then registered with the Personal Property Registry (PPR) which entitles you to enforce your Judgment. It also entitles you to share in money paid to the Clerk of the Court as a result of garnishment proceedings, or a Civil Enforcement Agency as a result of seizure proceedings commenced by other Enforcement Creditors.
The Writ and Addendum must be completed accurately because, once it has been issued by the Clerk of the Court, most corrections cannot be made except by an Order of the Court of Queen's Bench. It will require four copies of the Writ.
See appendix B for the Writ of Enforcement forms; an example of the steps are (see [1] for details):
Before proceeding with any enforcement, it is advisable to search PPR through an Alberta Registries Agent to determine whether or not any related Writs or Liens are filed against the debtor, by requesting a Distribution Seizure Search. When initiating enforcement proceedings, you must remember that you are taking this action on behalf of all creditors. Any monies recovered as a result of your enforcement will be paid out as follows:
(a) The costs involved in producing the fund, as proven by a taxed Subsequent Bill of Costs.
(b) The first $2000 will go directly to the creditor, unless there are creditors with statutory claims. which will take priority over your claim, or secured creditors who may or may not take priority over your claim.
(c) The remaining funds will be divided on a pro-rata basis among all Enforcement Creditors with related writs. If the Clerk of the Court or a Civil Enforcement Agency is already holding money as a result of enforcement done on behalf of another creditor, you may be entitled to share in the proceeds. The Clerk of the Court or Civil Enforcement Agency will mail out a Distribution Statement to all parties. There is a procedure to object to the proposed distribution.
Works Consulted
[1] The Alberta Courts, Retrieved May 26, 2010, from http://www.albertacourts.ab.ca/qb/publication/GettingandCollecting.pdf
Appendix A- Garnishee Summons forms
Appendix B – Writ of Enforcement
forms
