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http://www.collection-calls.ca/

Silverthorn's website is listed above. He was a prominent collection lawyer for 12 years before he decided to "cross the street" so to speak in early 2007.

Perhaps he sensed the winds of change. Mark is pretty bright with civil law jurisprudence but possibly prefers to avoid going to actual trial, I'm told by one of his prominent peers who does happen to love going to court. Anyhow, you don't want to go to trial, so that's not relevant to your situation.

Silverthorn used to work for Global Credit and Collections before being replaced by Deanna Natale in Jan. 2007. Deanna Natale is the daughter oif Judy Sgro, former Liberal Minister of Immigration and current MP for York West. And boy, Natale lives to sue - and bluff if she can't.

Mark has offices in Kitchener just down the street from where I used to live and also in Buffalo, since he deals with US Consumer Law. You might also want to call Bud Hibbs of Buddhibbs.com (a star of the CNN documentary movie "Maxed Out"). Apparently, it costs nothing for a brief conversation with these individuals but, obviously, someone's got to pay their bills.

I know Canadian Common Law (except for Quebec Civil Code) pretty well but I'm NOT familiar with US laws and so it would definitely NOT be a good idea to rely on my advice as to how things are enforced down there. You need someone who is. I do know that foreign judgements can and are enforced all the time and so I wouldn't want a sword like that hanging over my head accumulating interest.

It's remains hard to fathom why, if the loan went sour because of a payment plan misunderstanding, it couldn't have been resolved by the payment of arrears and reinstated.

The moral aspects of financial dealings are outside the scope of this forum, but if you are telling me you are morally free from owing them anything, personally, I can't agree.

Ray

Thank you Raymond,

I don’t believe I was misleading, but more cautious this being a public forum and all. As you said, visitors do read this forum!

I am discontent, angry and feeling abused by all this. At first I felt compelled and obligated to pay my debt, but now not anymore.

The attorney I had in Mtl was Maitre Dupuis., and he had little success with this. I am not playing hard to find, they know where I live and work.

To what I understood of the law and what you wrote, not being an attorney is that foreign judgments are hard to get accepted in US courts unless it’s worth their while and whether the defendant (me) was properly served with notice of the proceedings and given a reasonable opportunity to be heard in the foreign courts. This was not the case. Ah Ha! Gave you more information there…

How can I gat in touch with Mark Silverthorn, esq.. Is he in the USA or in Canada? He doesn’t work for a collection agency?

Thank you Raymond,

Karen.

Thanks for the answer Raymond. I was just wondering about that situation after hearing about stories of people having their bank accounts cleared out.I guess that is another good reason to have that fireproof safe hidden in the basement to keep the cash away from the thieves.

Well, it's not quite true that you or a creditor can't get Equifax or TransUnion in the US to simultaneously pull their Canadian Bureau reports. There's a nominal additional $10 approx. Not all potential creditors will be bothered, but some do as you can see from various blogs and posts.

http://www.canadatotwincities.com/credit_cards.html

Sort of a moot point because it's hard to establish credit in the US without creditor reference letters from various financial institutions you've been successfully dealing with in Canada. Otherwise, it's like starting from scratch. Technically, although the bureaus may be separate, they have acess to access to the same credit data warehouses.

If you've got judgments, repossessions, a gazillion R9"s and a 1976 Ford Pinto to your name and work at KFC, your chances of getting US credit is pretty minimal whether or not the credit reports are separate. However, having a profession and lived there a few years, I assume you must have already established other lines of credit.

Laws are morphing every year and each new privacy act or modification ultimately lessens it through forcing us to make our personal information more easily accessed by parties with only the most perfunctory of reasons.

Anyhow, a lot of things in your initial description didn't add up when I read it a second time. The fact you've already had a Quebec lawyer acting for you and had initial bank settlement negotiations indicates that. Since they made a reduced offer of 80% which you staunchly refused, it suggests the default was certainly not accidental and you are entertaining the thought you may well be free from the consequences of walking away from the debt.

Or if you're willing to settle, then perhaps only for a nominal amount like 10% or 20%. As collection lawyer, Mark Silverthorn, and other collectors visiting the forum have mentioned, banks generally don't come down in settlement offer percentages until the debt gets fairly old. You might feel they should make an exception in your case as you've "made it across the border;" and so they should be willing to take what they can get.

Maybe that's partially true. But you've got to realize that recovery managers in banks are a (mentally) wooden lot who aren't terribly accustomed to decisions that don't follow head office template schedules. Collections doesn't tend to attract the brightest minds in finance.

Besides hoping to be immune from the impact of Canadian negative credit info harming your US reports, you also are trying to cover your ass from the legal aspect. Certainly logical, but I'm not sure why your Montreal lawyer wouldn't have been able to give you a little more indication what immunity from legal action you would have in the US.

Perhaps Canadian lawyers aren't familiar with all the details of the process serving procedures for judgment enforcement in American states. A guy like Mark Silverthorn would know as he has an office in Buffalo, deals with the American FCRA. To boot, he used to work as a collection lawyer for Global Credit and Collections. (How lucky can you get?) But I think he wants a lot of money.

Anyhow, the problem weighing on your mind seems to be: If I walk away from this debt, what can they do to me down here if they take me to court up in Quebec? I was on the wrong track about the negligence thing by one of their managers because of the misleading information you posted on Friday.

Well, it's impossible to know all the logistical minutiae of how court orders are implemented in each US court district, but I think it's pretty safe to say: if they want to get a judgment against you in Quebec, they don't have to personally serve you by sticking the thing in your hand when you're playing hard to find. Same thing if there's a problem with legal intricacies of delivery via mail.

Consult with your Montreal lawyer again about them getting a default judgment if you become difficult to serve. You really don't want that to happen for all sorts of nasty reasons like escalating post judgment interests and all the US firms out there buying up defaulted judgments. It seems like such a judgment could be readily enforced. Irregardless, you wouldn't want such a thing hanging over your head.

Alternatively, your case might be one where it would be worthwhile to give a guy like Mark Silverthorn a call.

Ray

This is very frustrating.

We tried to speak to the CIBC and they referred me to the collection agency, third party is what they call it I believe.

They where not forth coming on anything, they wanted at first the whole amount then they said they would accept 4/5. I told them to go to hell.

I tried to reason with them in Canada; we even told the CIBC that we had an attorney in Montreal. They never responded to his request for documents and contracts. Go figure. The Collection Agency didn’t respond either and none of the Gouv. Bodies could do anything for us.

If they sue me they have to serve me, right? How are they going to legally serve me in Mass. For a Canadian law suite? Registered Mail? That’s a laugh! Also this is an unsecured Canadian credit debt. So do they have to follow US law or Canadian law to recover it?

I didn’t know that the Canadian courts could use the sheriffs dept. in the US to deliver, seize and collect on a foreign judgment? We had to send my documents to an attorney in Canada to have them in return sent by that attorney to have some information on my file. Which I didn’t get. The Quebec Huissier said that they could not receive any documents from the Sheriffs dept. in Mass. Because it could not be delivered by the sheriff and that it was not official?? Even when we sent it by Certified Mail. It seems that once US mail crosses over to Canada they are no longer legally responsible for it. Don’t understand that!

I spoke to the people at Equifax and they have no idea if a Canadian credit report can be put on a US credit report even though they use the same system. None of my information from Canada is on my US credit report, but they did (The Collection Agency) pull a credit report on me in the US. To what I believe they can’t since the credit was issued to me in Canada and not in the USA. A friend of ours, who works for a Bank also, has said that when Canadians request credit in the US they have to request it from Canada or something to that effect?? And only if there is a legitimate US transaction, such as a mortgage or personal loan. Otherwise they can’t. When we bought a car in Mass. They pulled my US credit report and not my Canadian one. They said they couldn’t. ??

In any case all this is very confusing and unnerving to me! Nobody really knows what they can or cannot do, and I can’t seem to get any answers from either the bank or the credit reporting agencies nor the collection company. It would seem that the banks do what ever they want and so do the collection companies.

I don’t want to spend thousands of dollars on maybes’ or uncertainties’, in any case thank you very much for your insight, if you could answer these other questions it would be very much appreciated.

Thank you,

Karen

Well, in principle, the question is a non sequitur, but practically speaking, it's very possible. A prominent trustee in bankruptcy summed it up well, "Often, possession is nine-tenths of the law."

If someone has a judgment placed against them, it may consist of a series of timely (usually monthly) payments - say $100 dollars a month. As long as the debtor makes those payments on time there's nothing more the creditor can do. But if the creditor defaults, then (usually after 15 days), the plaintiff can go to the court and obtain a lien/ writ/attachment against any of the debtor's income or assets.

The creditor, after paying the appropriate fee, takes the writ to the sheriff or baliff's office to have whatever they want seized; be it a bank account, a car with clear ttile over a certain threshold value, a paycheck, or even a house (if it has sufficient equity). After leaving the deposit with the sheriff of ($100 to $5000+) and a description of the asset, the sheriff can then seize the person's bank account or vehicle. The creditor must hope the effort worthwhile, because if there's insufficient money in the bank account, the debtor won't be stupid enough to use the same account again.

Conversely, if there's more money in the bank account than needed to satisfy the judgment, the creditor is only allowed to take an amount equal to the judgment. Note that it's not just the amount of arrears, it's the whole judgment because once a payment order is defaulted on, it becomes void and the whole judgment amount becomes due.

In such cases, it would therefore be impossible for a creditor to violate a court order because the sheriff/bailiff wouldn't take anything in excess of what's listed on the writ of execution.

However, other situations arise where the debtor, to saisfy a payment order, is foolish enough to allow the creditor to make monthly withdrawls on their account by ADR or (shudder) credit card. Even though "averagejoe" might not agree, giving one of these to an outfit like Natale Law Offices is potential suiciide. Yes, eventually, you could get the money back - in theory; but she knows it would take mountains of paperwork and action by Consumer Protection. Need I say more?

In other cases, accounts are cleared out without court action being necessary because of

(1) the right of offset of institutions to transfer any amount of money from one account to another to cover a debt that's gone into default as per the Bank Act.

(2) It should be noted that any government department can issue a recovery certificate for overpayment [or whatever} and it has the same legal authority of a judgment. They send a letter of inquiry and a following demand notice to a bank to instruct them to seize a depositor's account to settle an outstanding claim. All performed without giving anyone notice. The bank customer goes in one day only to find their account seized or cleaned out. A friend of mine is a bank manager and she tells me she gets letters of inquiry and subsequent seizure orders all the time. She has to obey no matter how much she dislikes it.

Ray

on the judgement topic,if a creditor gets a judgement against someone and the judge sets a certain amount per month.Can the creditor go into the victims bank account and only take that amount or can they take more.Also what would happen if they did take more.

Er, well, no; I was actually trying to say the opposite.

The fact that the legal system in Quebec is different than in the other provinces and territories doesn't substantially change what constitutes a tort (a finding of negligence causing injury to another party OR a breach of contract.) The 2 systems of civil law, the Civil Code in Quebec and the Common Law (a combination of case law precedents and statute law), elsewhere derives from our French and English backgrounds.

Irregardless, interpretations of what constitute torts of negligence and breaches of contract are substantially the same in Quebec as what they are in the rest of Canada. We gave them Joe Clark......and they gave us back Stephane Dion. A pretty fair exchange.

Obviously, If there was negligence in the handling of scheduled payments from your account due to staff rotation and it occurred without your fault, CIBC should be on the hook.

But before going further, I must admit the logistics of the way you describe the payment setup for your 3 accounts are rather strange. I didn't bring it up Friday because I was in a rush to get out the door. I have a lady friend who's a bank manager there's some other things that don't add up either. However, there's no point delving into that now.

Anyhow, if the bank was negligent, then I'm sure they'd meet people halfway in rectifying the situation which would include reversing the statutory right of offset they excercized in clearing out your account.

If efforts at the branch level didn't rectify things, then complaints to the 2 government bodies you mentioned were in order. If, in turn, they didn't pan out, your only recourse would be to sue under the 1 or 2 relevant Civil Code Stautes. Nevertheless, given the circumstances and costs involved, litigation might not be practical or even feasible.

As to your questions: if a judgment was rendered against you in Quebec, then most or all of the judgment award would consist of money and legal costs owed and not fines and penalty. Thus according to Massachussets Law, they would be enforceable.

The 3 articles I sent you emphasized how the legal pricinciples of "comity" and "equity" [reasonableness and fairness] were applied in American courts when it came to enforcing foreign court judgments. You can see these attitudes embodied in New Hampshire laws such as statute S 524.11 in the link below.

http://www.lawdog.com/states/nh/judm.htm

Global Credit and Collections has an office in New York State, but more importantly, the 3 credit bureaus in Canada are the same ones in the US; namely, TransUnion, Equifax and Experion (Northern). That's why the Fair Credit Reporting Act in the US has many of its clauses almost identical to those of Canadian Provincial Consumer Reporting Acts. And yes, the judgment or bad debts would almost certainly would be on your US credit report. Most banks have US operations anyway. Check with the bureaus to see what members they have reporting to them in those 2 states.

Practically, what would happen if CIBC obtained a judgment against you is that they could transfer it to their New York collections office or tender it out to one of their lawyers in New Hampshire and attempt to enforce it there. They would seek post judgment interest and legal fees as well. Or the bank might use some other collection firm or collection lawyer who had an office where you live. Conversely, they might not choose to sue - but for very large amounts, they probably would.

In any event, you need to get this matter straightened out with the bank asap.

Ray

Thank you,

So if I understand correctly, they probably won't sue me since it's a "penalty or fine" and that the laws in Quebec are napoleon civil laws and not common law statutes? Correct? In other words it'll be hard for them to cross over to the USA since it's a different judicial system?

Also, my husband and I are thinking of moving to New Hampshire, if we do, could you tell me where I can find the rules and statutes pertaining to this matter in that state?

Can Global call me from an office in the USA if this debt is a Canadian one? Wouldn't this imply that it's now a US Debt and can be written on my US credit report?

Thank you so very much for your help, I am very gratefull.

Dr. Karen T.