I wish you well as I to am involved with a collection comapny and a lawyer who has also gone to my work so far I have no paper work served on me and no paper work any where in the courst to be found But after reading about all the tricks they use like false address and lying to court officals I may not be outta the woods yet All I can say is this site has been a big help to me and hopefully to you as well good luck

Thanks for all the info Ray.

I have a mediation date on January 5. I am going in stating that they never served me...twice. They also got the garnish order through that, again no legal on their part. They served that to my employer after the expired date, again not done legally.

I am going to ask that it be thrown out based on these facts of not serving me and leading the courts on with false information. Also having a bench warrent for my arrest I will have this brought up. Then if they want to serve me leagally the time has expired. Plus they need to get the real amount to what is owed on this account, the date from HBO/Zellers for 2000 informaiton is incorrect, as it was being paid to another collection agency in 2001. I don't think they can do anything based on all of this info.

After January 5, I then will be putting all this in to complain to many groups out there about their practices. (*BPCPA, Equifax, Office of the Privacy Commissioner of Canada/PRIVACY BREACH INCIDENT REPORT) I have all the complain forms ready and I will also see if I can now sue them for what they have done. Embarrassed me at work, going into my credit rating without permission, leading the courts on with false statements, harrasssing me at work and two staff that I work with. My time involved in taking time off of work to go to the courts, travel time, harm to my character, etc.

Apparently, under Rule 2 (2) (a),(b) of the BC Small Claims Court Rules, unlike in Ontario, they either have to serve you either personally or by registered mail for which a signature is required. i.e.,

How to serve an individual:

(2) If the defendant is an individual, the notice of claim must be served by

(a) leaving a copy of it with the defendant, or

(b) mailing a copy of it by registered mail to the defendant.

[am. B.C. Reg. 188/99, s. 1.]

If they serve you by personal service, they have to swear a court affidavit that personal service was effected before they can circumvent the court mediation process and apply for a default judgment. Collection agents obviously are not above telling lies.

ARO needed to do one of those 2 things. Whichever one they did, it'll be on file in the court house or in its archives.

It's almost certain that the limitation period ends when the debt owner originally filed a statement of claim with the Court although they obvioisly deceived the Court about it being served in a legal manner on you.

Even more than in Canada, collection agencies and their lawyers do this big time in the States and work the numbers that way. Anyhow, 2006 and not 2008 would be considered in calculating the limitation period. If the court knows about those collection agency payments in 2001, the last payment date of those is what the court will use to determine when the limitation period started. Otherwise they'll use sometime in 1999 when you stopped paying Zellers.

The entire BC Small Claims Act is contained in this link. You might want to read over those parts that pertain to you.

http://www.qp.gov.bc.ca/statreg/reg/c/courtrules/courtrules261_93/261_93_00.htm

Ray

Hi Ray, will re-read all that you have posted. But my question is:
When ARO did their File of Claim, they sent it to a wrong address so I did not know to show up in court, etc. I have proof of this. When they served paperwork again to me, again they served it to the wrong address, so I did not know about it again. I can show proof of this also.
So, will the judge tell them that since they never served me properly by law, then they would need to reserve me? Which would now be todays date... 2008. Which would make it fall under the 6 year issue?

This is what I am going to show in the payment hearing. That I was never served.

Someone also went into my credit report and changed my address to this address in November 2007. I can prove that I never lived there at that time (Cable bills, rent, employment stubs, etc). When the claim was served also to this address in 2006 I can also prove that I never lived at that address. ARO also checked my credit rating in October 2005 which showed the correct address and in October 2007 which also showed the correct address I lived at. These previous addresses are showing on my credit rating. They knew by my credit report that I never lived at the address I was served. All my previous address can be proved.

So I really never have been served by ARO. I think they are the ones that went in and changed my date to this address. This weekend I am filling in the report to the credit rating to get that address off, will show them proof to where I have lived also. (which is the previous dates showing) I will also ask who changed my address back in November 2007 to this date.

And to make things even more strange, somehow my mothers credit rating got all mixed up with mine. We have got this all straightened out. So when they looked at my credit rating, they would see that I had a mortgage, which I did not, and other perfectly good credit cards which were not mine also. I have these reports showing all the wrong info, I will also bring these along. We also have no idea how these reports got mixed up. We have different last names and different SIN's.

So if they never served me legally, what date will hold in the courts to this debt?

Also the paperwork that they are collecting from is dated in 2000. If payments were made in 2001, then when it was sold to ARO, why did they not show a 2001 statement from Zellers/HBC? I was also going to bring that up to in the hearing. I included paperwork to the judge showing that I was paying another company, and that the paperwork that ARO is using is not dated properly.

Woops sorry, I didn't see one of your previous posts containing some details of what happened on the HBC account.

Zellers charged off the account in April of 2000 but evidently, they then assigned it to a third party collection agency to whom you made some payments until sometime in 2001.

HBC, being the original creditor, still had the right to withdraw the debt from the 3'rd party collection agency they assigned it to originally and sell it outright to any debt buyer they chose. And so, with respect to your account, it was ARO, who then became the new principal.

If you made payments until 2001 and they filed a claim in 2006, it would still be within the limitation period. However, if no one can find a record of those payments you made after Zellers charged it off, that would imply the last verifiable payment date to Zellers must have occurred circa Nov., 1999 since chargeoffs usually occur 180 days after default. Note: a debt's charge-off date is not the same date, legally speaking, as the date of default.

ARO might have been too late in suing if no record of those subsequent payments to a collection agency can be found. You need to challenge ARO to show the Court those payments were made. If they can't, the debt would have been stats barred when they filed. Thus you would have a complete defence to the action in your motion to overturn it. Do not volunteer to ARO or to the Court any information about those payments made to the collection agency. If ARO can only present evidence that the last payment was made to Zellers sometime during 1999, then the Court will have to overturn the original ruling. Conversely, if ARO can show further payments were made to a collection agency in 2000/2001 after Zellers charged it off or you let the Court know yourself, then the default judgment will likely stand if they presented sufficient invoicing documentation with it. In that event, you could still request the terms be eased on it.

Consequential damages on debt recoveries such as embarrassment, aggravation, travel expenses etc.are very hard to recover when you're the defendant. You'd have to win a new trial, file a valid defence and include them in a counterclaim. And even then, I dunno.

Ray

The statute of limitations as per section 3(5) of the BC Limitations Act for this type of debt is still 6 years unfortunately.

Note: The limitation period starts from when the debt first (i.e. you missed a payment) with the original creditor (HBC/Zellers) UNTIL the date that a statement of claim is actually FILED in the court ofice by whoever owns the debt at that point. So check your dates. That's why I've always I made such a strong point about retaining their old account statements.

One guy saved at least $40,000 owing to ARO in Kelowna who bought up his account up from HBC. They threatened to sue and ARO lied through his teeth that it wasn't stats barred. They even threatened to have the guy arrested by the RCMP.

However, the fellow kept all his old HBC account statements and ARO was exactly one month over the limitation period for filing an action. They still swore bloody murder that the guy was full of s*** but the guy knew the law and so the collection agencies lost a big meal that day.

Also notice the limitation period doesn't have anything to do with when a debt buyer or a collection agency takes over the account. The only factors that can renew a limitation period on this type of debt is when a payment is made on the account to whoever owns it OR a signed written acknowledgment of the account is provided. Every time you do one of those 2 things, the limitation period starts all over again. So be careful how you correspond with ARO. It's best to keep all correspondence with those shysters to the telephone.

In your case, find out the last date that you made a payment to HBC (Zellers) OR their collection agency afterward. If you don't have any account statements, you can call HBC Account services at 1 800 263-2599 and they will likely be able to tell you.

Certainly the account could be considered to have gone into default when you missed your first regular payment IF you made no further payments to a collection agency on it after that date. If the last payment was made on say, May 2001, that implies ARO had until at the latest June, 2007 to file a statment of claim in BC Small Claims Court. (Note some courts might use May, 2007 as the cut off date for admin reasons.)

If you can't get all the information you need concerning what ARO has on your account, you can demand under PIPEDA that they release it too you. Under Federal Law, the Privacy Commissioner mandates that all financial institutions have a privacy liason officer. You can demand it but, doubtlessly, ARO will deny any such thing. That means you'd have to complain back to the Privacy Commissioner in Ottawa. Unfortunately, many consumer affairs government offices in Canada are useless and so it's uncertain how far this approach will get you.

In any event, star by checking dates. If you can show ARO was outside the limitation period when they filed, that would serve as a complete defence in a motion to overturn a default judgment. You should also realize that it's usually not enough to prove to the court that the documents were served to the wrong address. Even when the court agrees that such happened, it will require you to file a credible defence at the time a motion is made to overturn the default judgment. The court does this for obvious reasons; otherwise, people would be skipping out on paying on validly obtained judgments by not showing up and then demanding a new trial without due cause years later. The fundamental mechanics of justice would then be impeded.

Coversely, If ARO was within the limitation period, go into the court office and examine the documents they submitted as evidence in order to obtain the default judgment. Often, when debt buyers purchase portfolios, they receive scarcely any information about the individual accounts in it such as account statements etc. These ordinarily would need to be submitted to the court as evidence of proof a valid debt existed that wasn't stats barred. Because ARO are pathological liars (as I've said in so many other posts), you need to carefully check what they've submitted including their falsified affidavits of service. That would severly reduce their credibility or even their entire case should your motion for a retrial be granted.

Ray

What is "stats barred" in regards to BC?

Hi Raymond,

Sorry, I am from BC. And yes it is ARO from Kelowna.
I just got my Mediation appt with the courts in the mail today.
Any advise. I have just started to read the blogs here, have printed all of them and I am going to read and read and read....

I really don't understand that I was paying a different company in late 2000 and in 2001. The paperwork that HBO/Zellers attached is a statement from 2000. How can they sell a debt to ARO when another collection company has it and I have been paying them.

Can't understand why the courts accept court documents that are served with no signature, yes Canada post says they dropped it off, but the wrong address. Even when I went to the payment hearing the judge did want to listen to me, I was trying to show her the paper that I was not served that it was returned on a certain date to ARO, they had plenty of time to advise the courts that I never received the documents.

You didn't say what province you were in. I assume the HBC debt wasn't stats barred in the province you were living in when you took out the cards. I've mentioned those clowns, ARO in Kelowna and their HBC portfolios many times. But no one payed much attention.

That's why I keep telling people be wary of collection agencies and collection lawyers deliberately sneeking through default judgments by mailing the court statements of claim to addresses they know to be false and then falsifying the affidavits of service attesting to the fact the papers never came back to them. This is a favourite of many or all collection agencies. I notice Silverthorn neglects to bring this tactic up in his book but it's an important one to be leery of.

In particular, watch out for Natale Law Offices and Total Credit Recovery.

Ray

ARO in Kelowna is extremely tricky. They put in a Claim on me, then won the judgement, I did not show up for court so then there was a bench warrant on me. I had to go in to see what this was all about.
It turns out they served papers twice to me, to an address I did not live at. Both times they were returned back to the send. They served papers that required no signature. I got copies from Canada Post to show they got them back. They did not advise the courts that these papers did not get served. That is how the bench warrant came about.
Extremely long story with them, so I went to court and filled in a form to see a judge. Put all my paperwork to prove I was never served. Also they tried to gaurnishee my wages and got that because I did not know about the court date, that was only good for 7 days. They took almost 2 months to send that to my employer. So the order was void. They also faxed it to my employer again about 8 months later asking for my payroll information, etc... Again using a voided document. I also put that all on the paperwork with the judge. They have gone into my credit report four times over the past few years, and my address was correct on file, never understood why they kept going to the wrong address. I have now discovered that Zellers gave them paperwork dated in April 2000, and they are collecting on that. I also have paperwork to show that I have dealt with a different collection agency and have been making payments to them in Dec 2000 and April 2001. Also have the bank statements to show this.

So why would Zellers/HBC sell debt twice?
It is going over to a mediation, which I am saying there is no debit with ARO, I have been deeling with a company in 2001. Don't even know why they are doing this to me? I am also complaining to 3 different groups aobut ARO for serving documents wrong and stating they did serve them, contacting my employer twice by phone, once by letter and once by fax suing voided documents. I also have letters/faxes/emails which I have been sending to them. They state they have never been able to contact me.

Any more help I might need. Can this company check my credit rating this lowers your score. I want to get them removed. Also Zellers never showed that I was paying into the account in 2000/2001. It does not show on my credit report as of now.