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http://www.canada.com/vancouversun/news/story.html?id=6ec22429-c259-491c-a696-56adee978d27&k=88882

Hi,

I received a letter from one of the legal firms listed (Natale Law Offices) on an over 10 year old debt to American Express. It is claiming a much larger amount then what I could have possibly accumulated back then since it is at least 4-5 times the limit allowed by the credit card. It says I owed monies to A.R.C. Accounts Recovery Corporation. I called back the number they requested questioning the amount but not really the possiblity I owed something. They want me to pay this TODAY or tomorow at the latest....what now?

M.

P.S.: The lady I spoke to was less then cordial.....

1. First of all, the SOL period has nothing to do with the contract signed with a creditor; instead, it's governed by the appropriate provincial and/or federal legislation.

2.This doesn't necessarily mean that a creditor can't sue you, only that you can invoke the SOL period as a defence. A lot of companies (both here and in the US) will try to obtain a default judgement when they know the limitation period has expired in the hopes you won't contest the action. After all, the judge may not know if, in fact, the case is stats barred if you don't show up to defend yourself. Then you're stuck with having to make a court motion to overturn the decision. Not fun.

3. The Canada Student Loan Act is pretty clear on what constitutes an acknowledgement of your loan and how it affects the limitation period.

I'm reprinting an excerpt below showing that you can restart the limiation period on the federal portion of your student loan even AFTER it has expired. The list of things that cause it to REVIVE or RESTART is shown in Section 19.2. So if you don't want to shoot yourself in the foot, DON"T DO THOSE THINGS!

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CANADA STUDENT LOANS ACT

Acknowledgment after expiry of limitation period

Section 19.1(5) If a borrower?s liability for money owing under a guaranteed student loan is acknowledged in accordance with subsection (4) after the expiry of the limitation period in respect of the loan, an action or proceedings to recover the money may, subject to subsections (3) and (6), be brought within six years after the date of the acknowledgment.

Application of Limitation Period and Acknowledgement of Loan

Section 19.2 (1) This section applies only in respect of the recovery of money that became due and payable under a guaranteed student loan before the coming into force of this section.

Limitation period
(2) Subject to this section, no action or proceedings shall be taken to recover money owing under a guaranteed student loan more than six years after the day on which the limitation period that applied before the coming into force of this section started to run.

Prior acknowledgments
(3) For the purposes of subsection (2), the day of the most recent acknowledgment of a borrower?s liability in respect of money owing under a guaranteed student loan is deemed to be the day on which the limitation period started to run if

(a) the acknowledgment was made before the coming into force of this section; and

(b) under the law applicable at the time of the acknowledgment, the time during which the limitation period ran before the acknowledgment did not count in the calculation of that period.

Deduction and set-off
(4) Money owing under a guaranteed student loan may be recovered at any time by way of deduction from or set-off against any sum of money that may be due or payable by Her Majesty in right of Canada to the borrower or the estate or succession of the borrower.

Acknowledgment of liability
(5) If, on or after the day on which this section comes into force, a borrower?s liability for money owing under a guaranteed student loan is acknowledged in accordance with subsection (6), the time during which the limitation period has run before the acknowledgment does not count in the calculation of that period.

Types of acknowledgments
(6) For the purposes of subsections (5) and (7), an acknowledgment of liability means

(a) a written promise to pay the money owing, signed by the borrower or his or her agent or other representative;

(b) a written acknowledgment of the money owing, signed by the borrower or his or her agent or other representative, whether or not a promise to pay can be implied from it and whether or not it contains a refusal to pay;

(c) a part payment by the borrower or his or her agent or other representative of any money owing; or

(d) any acknowledgment of the money owing made by the borrower, his or her agent or other representative or the trustee or administrator in the course of proceedings under the Bankruptcy and Insolvency Act or any other legislation dealing with the payment of debts.

Acknowledgment after expiry of limitation period
(7) If, after the expiry of the limitation period in respect of a guaranteed student loan ? including any limitation period that expired before the coming into force of this section ? and on or after the day on which this section comes into force, a borrower?s liability for money owing under the loan is acknowledged in accordance with subsection (6), an action or proceedings to recover the money may, subject to subsections (5) and (8), be brought within six years after the date of the acknowledgment.

Limitation period suspended
(8) The running of a limitation period in respect of a guaranteed student loan is, commencing on the day on which this section comes into force, suspended during any period in which it is prohibited to commence or continue an action or other proceedings against the borrower to recover money owing under the loan.

Statutory bar
(9) Subject to subsection (7), if the limitation period in respect of a guaranteed student loan expired before the coming into force of this section, no action or proceeding shall be taken to recover money owing under the loan.

Enforcement proceedings
(10) This section does not apply in respect of an action or proceedings relating to the execution, renewal or enforcement of a judgment.............

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4. It's important to note that the borrower also needs to be familiar with the provincial legislation of his residence. For general consumer debt, this will be all the debtor needs to know. But with student loans, the borrower needs to know both the appropriate provincial legislation as well as the federal because the provincial legislation can have a wide variation.

For example, Ontario keeps it simple: it has no limitation period on student loans, whereas Alberta has a 6 year limitation period -
same as the federal period but with a potentially important difference. You can't revive the provincial portion of your CSL by acknowledging it after the SOL expiry date. To see this, lets look at the appropriate section of the Alberta Student Financial Assistance Act.
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ALBERTA STUDENT FINANCIAL ASSISTANCE ACT

Limitation of actions

14 The Limitations Act applies to claims, within the meaning of that Act, arising under this Act except that, instead of the 2‑year period referred to in sections 2(2)(b) and 3(1)(a) of the [Alberta] Limitations Act, a 6‑year period applies for the purposes of this Act.

Thus, we also need to look at the Alberta Limitations Act (referred to in the above clause) to see what constitutes an acknowledgement of a debt and thereby what can RESTART but not REVIVE the SOL period. This can get quite tricky, so an Albertan would be well advised to pay close attention to Section 8(3) of the Act. so that he doesn't fall into an unnecessary pit.
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ALBERTA LIMITATIONS ACT

Acknowledgment and part payment

8(1) In this section, ?claim? means a claim for the recovery, through the realization of a security interest or otherwise, of an accrued liquidated pecuniary sum, including, but not limited to a principal debt, rents, income and a share of estate property, and interest on any of them.

(2) Subject to subsections (3) and (4) and section 9, if a person liable in respect of a claim acknowledges the claim, or makes a part payment in respect of the claim, before the expiration of the limitation period applicable to the claim, the operation of the limitation period begins again at the time of the acknowledgment or part payment.

(3) A claim may be acknowledged only by an admission of the person liable in respect of it that the sum claimed is due and unpaid, but an acknowledgment is effective

(a) whether or not a promise to pay can be implied from it, and

(b) whether or not it is accompanied with a refusal to pay.

(4) When a claim is for the recovery of both a primary sum and interest on it, an acknowledgment of either obligation, or a part payment in respect of either obligation, is an acknowledgment of, or a part payment in respect of, the other obligation.

1996 cL‑15.1 s8

Persons affected by exceptions for agreement, acknowledgment and part payment

9(1) An agreement and an acknowledgment must be in writing and signed by the person adversely affected.

(2) An agreement made by or with an agent has the same effect as if made by or with the principal.

(3) An acknowledgment or a part payment made by or to an agent has the same effect as if it were made by or to the principal.

(4) A person has the benefit of an agreement, an acknowledgment or a part payment only if it is made

(a) with or to the person,

(b) with or to a person through whom the person derives a claim, or

(c) in the course of proceedings or a transaction purporting to be pursuant to the Bankruptcy and Insolvency Act

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Ray

With regards to statutes of limitations on debt... I may be over simplifying.

This all comes down to the contract that you signed and the law that regulates the company you've signed the contract with.

A company cannot successfully sue you in court after the debt has passed the statutes of limitations.

I'll have to review the acts that Raymond has pasted. They're always a treat to review!

I believe these acts should be administered by Ontario (Provincial) Justice which would make a call to them a good idea to clarify things.

Just for fun I went on google to see if I could find any pictures of a Silver Thorn.

This is what I found.


Silver Thorn #1




Silver Thorn #2

I'm just wondering if we have any artists in our midst who could draw a "real" silver thorn?

That would be amusing for the purpose of this discussion area.!!

LIMITATION PERIODS AND DEBT ACKNOWLEDGEMENTS

Questions about SOL's come up all the time, like this one which a blogger at the CFWGroup.ca website posed to Johnny.

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Hi,

Simply asking a collection agency to send you 'proof' in writting (ie: copy of a contract etc) that you owe the debt...is that considered 'acknowledging the debt, for the purpose of re-setting the statute clock?

Thanks in advanced!

Lady in trouble!

Hi Lady,

Asking them to provide you with proof that the claim is real does not constitute as an acknowledgment of the debt. However, if you issue anything in writing to your creditor, or its third-party recovery or legal agent, then that would be risky in that sense. Simply talking to someone about a debt cannot be used to revive a debt that is statute barred. There has to be actual written and signed documentation or payment sent by the borrower in order to cause a debt to survive any limitations that are in place.

Lastly, if you do owe a debt, and it is statute barred, you still owe the money. The debt does not up and vanish.

John LeBlanc - CFWG

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Now, in order to answer the question properly, it's necessary to discern between different types of debt such as student loan debt and general consumer debts that are secured and non secured.

For student loans, the Canada Student Loans Act and the Canada Student Financial Assistance Act (that came into force on August 1, 1995) allow a student loan that's been stats barred to be revived by an acknowledgement of the debt (as per section 16.1 (5)), if that acknowledgement takes one of the forms that they define in section 16.1(4a, 4b, 4c, or 4d).

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16.1 (1) Subject to this section and section 16.2, no action or proceedings shall be taken to recover money owing under a student loan more than six years after the day on which the money becomes due and payable.

Deduction and set-off
(2) Money owing under a student loan may be recovered at any time by way of deduction from or set-off against any sum of money that may be due or payable by Her Majesty in right of Canada to the borrower or the estate or succession of the borrower.

Acknowledgment of liability
(3) If a borrower?s liability for money owing under a student loan is acknowledged in accordance with subsection (4), the time during which the limitation period has run before the acknowledgment does not count in the calculation of that period.

Types of acknowledgments
(4) An acknowledgment of liability means

(a) a written promise to pay the money owing, signed by the borrower or his or her agent or other representative;

(b) a written acknowledgment of the money owing, signed by the borrower or his or her agent or other representative, whether or not a promise to pay can be implied from it and whether or not it contains a refusal to pay;

(c) a part payment by the borrower or his or her agent or other representative of any money owing; or

(d) any acknowledgment of the money owing made by the borrower, his or her agent or other representative or the trustee or administrator in the course of proceedings under the Bankruptcy and Insolvency Act or any other legislation dealing with the payment of debts.

Acknowledgment after expiry of limitation period
(5) If a borrower?s liability for money owing under a student loan is acknowledged in accordance with subsection (4) after the expiry of the limitation period in respect of the loan, an action or proceedings to recover the money may, subject to subsections (3) and (6), be brought within six years after the date of the acknowledgment.

Limitation period suspended
(6) The running of a limitation period in respect of a student loan is suspended during any period in which it is prohibited to commence or continue an action or other proceedings against the borrower to recover money owing under the loan.

Enforcement proceedings
(7) This section does not apply in respect of an action or proceedings relating to the execution, renewal or enforcement of a judgment.
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For secured or chattel consumer debt there is no limitation period. As well, in Ontario, there is no limitation period for the Ontario portion of student debt, so acknowledgement becomes irrelevant.

For general unsecured consumer debt in provinces such as Ontario, we can see by the Ontario Limitation Act of 2002, in particular, Section 13.1(9), that you can't revive the debt by acknowledging it.
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ACKNOWLEDGEMENTS

13. (1) If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the recovery of personal property, the enforcement of a charge on personal property or relief from enforcement of a charge on personal property, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made. 2002, c. 24, Sched. B, s. 13 (1).

Interest

(2) An acknowledgment of liability in respect of a claim for interest is an acknowledgment of liability in respect of a claim for the principal and for interest falling due after the acknowledgment is made. 2002, c. 24, Sched. B, s. 13 (2).

Collateral

(3) An acknowledgment of liability in respect of a claim to realize on or redeem collateral under a security agreement or to recover money in respect of the collateral is an acknowledgment by any other person who later comes into possession of it. 2002, c. 24, Sched. B, s. 13 (3).

Realization

(4) A debtor?s performance of an obligation under or in respect of a security agreement is an acknowledgment by the debtor of liability in respect of a claim by the creditor for realization on the collateral under the agreement. 2002, c. 24, Sched. B, s. 13 (4).

Redemption

(5) A creditor?s acceptance of a debtor?s payment or performance of an obligation under or in respect of a security agreement is an acknowledgment by the creditor of liability in respect of a claim by the debtor for redemption of the collateral under the agreement. 2002, c. 24, Sched. B, s. 13 (5).

Trustees

(6) An acknowledgment by a trustee is an acknowledgment by any other person who is or who later becomes a trustee of the same trust. 2002, c. 24, Sched. B, s. 13 (6).

Personal property

(7) An acknowledgment of liability in respect of a claim to recover or enforce an equitable interest in personal property by a person in possession of it is an acknowledgment by any other person who later comes into possession of it. 2002, c. 24, Sched. B, s. 13 (7).

Liquidated sum

(8) Subject to subsections (9) and (10), this section applies to an acknowledgment of liability in respect of a claim for payment of a liquidated sum even though the person making the acknowledgment refuses or does not promise to pay the sum or the balance of the sum still owing. 2002, c. 24, Sched. B, s. 13 (8).

Restricted application

(9) This section does not apply unless the acknowledgment is made to the person with the claim, the person?s agent or an official receiver or trustee acting under the Bankruptcy and Insolvency Act (Canada) BEFORE THE EXPIRY OF THE LIMITATION PERIOD APPLICABLE TO THE CLAIM. 2002, c. 24, Sched. B, s. 13 (9).

Same

(10) Subsections (1), (2), (3), (6) and (7) do not apply unless the acknowledgment is in writing and signed by the person making it or the person?s agent. 2002, c. 24, Sched. B, s. 13 (10).

Same

(11) In the case of a claim for payment of a liquidated sum, part payment of the sum by the person against whom the claim is made or by the person?s agent has the same effect as the acknowledgment referred to in subsection (10). 2002, c. 24, Sched. B, s. 13 (11)....................

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It almost goes without saying that, even if a debt is irretrievably stats barred, the creditor can still pursue you forever to the gates of hell over it; he just can't start up legal action to recover it. How to practically deal with such a situation will be the topic of a subsequent posting.

Having said this, a lot of lawyers report that in the U.S. and sometimes in Canada, that collection agencies will play the numbers by buying up a lot of stats barred debt and then play the numbers by getting default judgements in uncontested suits - so be careful of the Silverthorn and Natale crowd.

Ray

That's no way to talk about the "Diva of Distress'" and "D-Rex of Debt's" mentor. I'm offended. You were way too soft.

I see there's quite a groundswell starting up in certain states concerning lawsuits against all 3 cra's for just the sort of reason you state, but I haven't seen anything in Canada yet. No shortage of US websites on it though, for example:

http://www.law.com/jsp/article.jsp?id=1155648410038

Also, a lot of difficulties present themselves in getting a judgement.

Ray

Mark Silverthorn is a pompass ass........thinks he knows all but knows f**k all.......he has no idea what life is about and those letters are all smoke & mirrors.......he doesnt even practice debt law.....hes a family lawyer........hows that for an eye opener.......like I said hes a pompass ass!!!!!!!!!!

Looks like a few other sites are complaining about Mark Silverthorn.

http://www.cfwgroup.ca/content/view/22/95/

I opened a letter from a lawyer (Mark Silverthorn) earlier today announcing to me that "I am scheduled to be sued by CAPITOL ONE for outstanding monies of $896.17...I immediately became suspicious, as the letter was in a P.O. Box which belongs to a my fathers business, in the town I haven't lived in for 12-15 years, so I contacted Capitol One, where I was asked to supply them with my account number...that's the other interesting point, to the best of my knowledge I have never had a Capitol One card, therefore I do not have an account # and nor is it referenced in the letter. The next request was for my SIN #, which I refused to give out.

http://www.canadastudentdebt.ca/forum_posts.asp?TID=3513&PN=1

Oh god, I dont know what to do. I just recieved a letter from a lawyer called mark silverthorn saying they are going to sue me in a few days and i am running out of time.

the funny thing is, its a really old debt, and the global credit collection agency just found me i guess. anyways...we, the collection agent and i were working on some sort of payment plan...so i dont know why they would just all of a sudden send a lawyer after me?

http://www.discovervancouver.com/forum/topic.asp?TOPIC_ID=4823&whichpage=4

iQor, Inc formerly CBCL - Canadian Bonded Credit Limited - Now Iqor Collection Agency profits by breaking the law.
The best thing to do is send a fax to them demanding written correspondence only. iQor, Inc formerly CBCL - Canadian Bonded Credit Limited - Now Iqor Collection Agency (irmc.com) is notorious for crossing the line of ethics, but the industry is now privatised, so your best ammo is the privacy act to cease any phone calls. They will never sue you and their lawyer mark silverthorn(in my opinion after personally meeting him)is a tool and a prime example of a bottom feeding lawyer adapting to his inabilities by taking a salary from a collection agency. Bill Collectors truely suck when they take their pathetic job to heart(keep chasing the perverbial dollar)
leaches of society. if I appreciate something I pay for it, dont confuse emotion with capitalism.

Hi Raymond,
I'm going to look into putting that as a category.

That's exactly what I've done with the individual companies. I thought it would be a good idea to talk about specific companies such as TD Bank, iQor, Inc formerly CBCL - Canadian Bonded Credit Limited - Now Iqor Collection Agency , Equifax Canada etc.

It should also be a good idea to talk about individual collection agents. The collection agent hall of fame.

Give me a few days to cook this up.