Midterm Flashcards
What is a Preferred Creditor
Has BEst priority due to statute
1st position
What is a Secured Creditor
2nd position
have claim to specific property of devtor due to contract
What is an Unsecured Creditor
3rd position lowest priority
no right to specific assets
What rights do Preferred Creditors follow?
Workers Compensation Act and Income Act
What rights do Secured Creditors follow
If its real property then its the land titles act
if personal property then its the personal property security Act
What rights do unsecured creditors come from
Civil Enforcement Act
Examples of a Secured Credit Agreement
Mortgages
General Security Agreements
Examples of a unsecure Credit Agreements
Promissory Notes
Lines of Credit
Credit Card Contracts
What are some self Creditor Self Collection Attempts
- Call debtor
- send letter demanding payment
- visit debtor at home or work
- give debt to a collection agency to colelct.
Problems with Self Collection Methods
Creditor could be sued by debtor for defamation
creditor could be charged with theft or sued for tort of converstation, if taking assets to satisfy debt
could be charged with harassment
What do Clients consider when Hiring the lawyer
Repuation and impression
Costs associated with hiring the lawyer
What do lawyers cosider when taking on a client?
potential conflict of interest
limitation deadline
facts of the case
lawyer’s existing workload
How to open a physical file?
Prepare the file folders and subfolders
labeling the file
creating and placing a file opening sheet on the file
How to open an Electronic File?
Create a new matter foler in the Lawyer’s directory
open the file in the law firm’s accounting software package
What is Limitation Date
Once Default of payment happens deadline to sue determined by the limitations act
usually 2-10 year rule
What is Legal assistants role with limiation date?
Write on file cover
record electronic diary
record on a paper diary
Who determines the limiatation Date
The lawyer
What are Immediate post file opening steps
Retainer letter
receipts of retainer funds
request and receipt of client documentation
What is a Secured Creditor
Gices a loan to the debtor
takes interest in debtor’s property
can take debtor’s property if debtor defualts on loan
what is an unsecured Creditor?
gives a loan to the debtor
no interest in debtors property
has simple promise frome the debtor to pay
must get judges if debtor defualts in order to try and get money.
what is in a secured credit contract
Name of secured creditor and debtor.
amount of money loan
repayment terms and conditions of the loan
assest given as security for the loan
address for service and contact info on both parties
Examples of secured credit contracts
Land mortgage chattel mortgage conditional sales agreement assignment of book debts general security agreement debenture
How to resgister a Secured Credit Contract?
It gets registered at Personal Property Registery
Follows Personal Property Act
What happens When Detor Defaults?
- Debtor defaults
- secured creditor attempts to collect
- lawyer is hired
- civil enforcement agency is hired and take assets
- secured creditor keeps or sells assets to satisfy debt
- secured creditor may sue if there is debt still owing
- lawyer reports to client and closes file.
When do you send a demand letter?
Prior to calling the Civil Enforcement Agency
What is a demand letter?
Letter from lawyer to debtor
request payment of debt
usually send WITHOUT PREJUSDICE
How to hire a Civil Enforcement Agency?
The lawyer will need a:
- Letter of instruction
- warrant
Prior to seizure the civil enforcement agency prepare:
A notice of seizure
A notice of Surrender OR a bailee’s undertaking
After seizure the civil enforcement agency
Prepares Bailiff report
Registers Notice of Seizure at Personal Property registry within 3 days of seizure
What are post seizure creditor Options
- sell property by private sale
- sell property by public sale
- lease or accept deferred payment from debtor
- keep property to satisy debt
Who is notified when seized property is sold?
the debtor
anoyone else known to be owner of the collateral
another creditor with subordinate interest in sized property
any other paty that has notified the secured creditor
How is a notification of sale done
Through a Notice of Debtor of Intention to Dispose of Seized Property
20 days prior to sale
Prior to the sale the debtor has the right to:
- right to redemption - pay debt in full
2. right of reinstatement - pay arrears and bring agreement back into good standing
What is a demand Loan:
A loan that may or may not have monthly payments
has a provision in the contract that payment in full of the outstanding debt can be made at any time
credit card and comercial loans are often demand loans
Contents of a Demand Letter?
- Who the lawyer represents
- how the debt came to be
- enclosure of the loan document
- exact amount of principak and interest owing
- calcualtion of amount owing
- deadline for payment
- how payment is to be made
- consequences of not making payment.
What is a legal assistants role with the demand letter
- gather documents to prepare demand letter
- draft or edit demand letter
- calculate interest owing
- send to debtor by appropriate method
- Diarize file for day after payment deadline for follow-up
Where can a collection Action be commenced
Provincial court of Alberta
court of Queens Bench of Alberta
What are the options for a commencing document
Statement of claim
Civil Claim
What info is in a commencing Document
- Parties in the action
- jusicial center
- address for service
- establishing the court has juristiction over matter
- summary of debt
- specific details of debt
- confirmation of default in payment
- demand for repayment has resulted in refusal to pay
- claim judgment of a money award and other relief
Where must a Affidavit of Service be filed?
Clerk of the court
what is a liquidated claim?
Claim for specific sum of money
What is an unliquidated claim?
claim for debt that is not easily calculated
Procedure for liquidated Claim:
- Affidavit of Service
- Default of judgment
- Bill of costs
- Affidavit of Default
Proedure for unliquidated claims?
- Affidavit of service
- noting in default
- application
- affidavit
- affidavit assessing damages
- affidavit of default
- draft order
When is a liquidated claim prepared?
defendant filed either a statement of defence or demand for notice and did not serve it on the plaintiff
the defendant did nothing
When is an unliquidated claim needed?
Defendant filed but did not serve statement of defence or demand notice
What is Default Judgment
Official Pronoucement by court
announced defendant owes plainfidd
reviewed and signed by Clerk of the Court only
combined document with Bill of Costs
What is a Bill of Costs
Allows plaintiff to obtain some expeses from the defendant
allowed pursuant of alberta rules of court
additional funds calculated using schedule c of alberta rules of court
combined default judgment and bill of costs
What is noting in default
Gives formal notice to the clerk of the court that defendant did not file a statement of defence or demand notice
use form 14
no signature required
What is Ex-parte Application?
Apply to the court to render a judgement in favour of the plaintiff
requesting the judge to assess the plaintiff damages and attach a dollar figure to those damages
request for judgement done without notice to defendant
Steps in an unliquidated claim
- prepare swear and file affidavit of service
- prepare ex parte application and affidavit
- have client in to swear affidavit
- file Ex-parte application and affidavit with court
- wait and appear at hearing
- Have order signed and entered
- Prepare writ of enforcement
what is Summary Judgment
- option whendefendant files and serves statement of defence if there is no vaild defence.
- or only issue in dispute is the amount of money the plaintiff should receive.
What documents are needed for a summary of Judgment
- Affidavit of Service
- Application for summary judgement
- affidavit of plaintiff
- affidacit of Defendant
- Judgment or order may be granted after hearing.
Legal assistant role with summary Judgment
Type and format documents
contract clerk of the court for abailable trial dates
send documents for filing
serve appropriate documents on opposing party
