Maybe I'm confusing the issue.
http://www.ag.gov.bc.ca/courts/civil/smallclaims/guides/wh at_is_small_claims/index.htm
The notice of claim
The first thing Lois has to do is get a notice of claim form from the
small claims court registry near her, and fill it out. The instructions
are all included with the form.
Then
she takes the form to the registry where a person behind the counter
checks it for her. She pays the filing fee and the clerk gives her back
several copies of the form and a blank reply form. This is called
"filing" the notice of claim.
The
blank reply form and one of the copies of the notice of claim is for
Norman. This will tell him what the lawsuit is about and will give him
the form he needs to answer it. Lois knows that he is avoiding her, so
she asks a friend to take the papers to Norman. Norman then has 14
days, from the day he received the papers, to file his reply.
The reply
When Norman receives the notice of claim, he is upset. He does owe Lois
money, but it was supposed to be a no-interest loan and now she says he
agreed to pay 10 per cent interest. And $700 of the money she gave him
was payment for repairs he did to her car. He has already repaid $500,
so he figures he still owes her $800. He would pay that now if he
could, but he doesn't have the money.
Norman fills out the reply form. In it he admits
that he owes her $800 but says $700 of the money Lois gave him was payment for repairs he did to her car. He
denies that he owes any interest and asks for a payment schedule. He says he could pay $100 a month for eight
months.
Norman
takes the completed form to the small claims court registry where Lois
filed the notice of claim. (The address was on the form.) The staff
checks the form and accepts it for filing. There is a fee for filing
the reply.
The registry now mails a copy of Norman's reply
to Lois. (Norman doesn't have to give it to her personally because on her notice of claim she had to give her
own address where she could be reached by mail.)
The settlement conference
The next thing that happens is that Lois and Norman both get a notice
in the mail telling them to come to a settlement conference.
At
the settlement conference, the judge looks at the notice of claim, and
the reply, and asks Lois and Norman a few questions. The judge tries to
see if there is any chance the two can agree.
Lois eventually agrees that the loan was supposed
to be interest-free. But they can't agree about the $700 for car repairs. Lois also isn't happy about waiting
eight months to get back $800.
The
judge can make a payment order right then for the $800. There will have
to be a trial about the $700 difference. The judge talks to them about
what sort of evidence each of them will need to bring. They agree on a
date for the trial.
The trial
At the trial the judge lets Lois and Norman tell their own stories and
then reply to what the other person says, and call witnesses. The judge
accepts the evidence of Lois' mechanic that Norman did not do the work
he said he did. The judge's decision is that Norman must pay Lois the
$700 remaining on the loan.
Then
the judge asks Norman how he plans to pay the judgment. Norman says
that $100 a month is still all he can afford. Lois says she doesn't
believe that and she needs the money sooner. They agree to come back
later for a payment hearing.
The payment hearing
At the payment hearing, the judge asks Norman questions about his
finances. Lois gets to ask some questions too. Finally, the judge
orders that Norman pay $100 a month plus $500 in April, when he
receives his income tax return.
What if the defendant ignores
the whole thing?
This often happens. A person receives a notice of claim and just does
nothing. If that happened to Lois, she would have to go back to the
small claims court registry after the time limit for Norman's reply had
passed. If she could prove that Norman had been properly served with
the papers, she would get an order for payment against Norman for the
amount she was claiming, and pay the filing fee for this order. This is
called a default order. She could then enforce that order just as if it
had been made by a judge following a trial.
What will it cost me
for my case?
That will depend on how you handle your case, how the defendant responds to your claim and how you choose to
proceed if you win your case.
There are fees set by the small claims rules
for registry services and sheriff services. .
In
addition to the set fees, there may be expenses and interest added on
to the total owing. If any costs are to be added to anyone's case, the
judge or registry staff will make the decision.
In most situations the fees and expenses can
be added to the total amount the unsuccessful party has to pay. This means the costs the defendant had to pay
may be charged against the claimant if the defendant is successful with a counterclaim.
If you do end up hiring a lawyer to represent
you, the fees you pay to the lawyer can't be added to your judgment.
Anyone who cannot afford the registry fees
may make an application to the registrar to be exempted from paying the fees.
If I win my case am
I guaranteed to get my money?
Unfortunately, no. The court can give you tools you can use to collect
your money - such as a payment hearing or a garnishing order. In the
most extreme cases, when someone deliberately ignores a court order, a
judge can send a debtor to jail. But some people will not pay and some
cannot.
It
is frustrating to spend time and money to prove a claim in court and
then still be unable to collect what is owing to you. If you are
thinking about making a claim in small claims court - or in any court,
for that matter - you should first consider what your chances are of
collecting, if you should win.
What if I don't like
the judge's decision?
A small claims court decision can be appealed to the Supreme Court. But an appeal will cost money, take time
and the result might not be any different.
Settling with Collectors
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Johnny wrote: