Collection Agencies - Payment After Statute of Limitations - Ontario (CBV) - Canada

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RE: Payment After Statute of Limitations - Ontario (CBV)

Postby TJ.brooks » Thu Oct 06, 2011 02:29:47 PM

since the act of default did not occur until after Jan 1 2004 the new limitation of 2 years applies based on the section within the SOL.
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RE: Payment After Statute of Limitations - Ontario (CBV)

Postby Greg_Ontario » Thu Oct 06, 2011 09:33:36 AM

Now that I look at it, this account was opened in 2001. However, it was not delinquent until 2008. So which SOL is in effect? 6 years or 2 years?
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RE: Payment After Statute of Limitations - Ontario (CBV)

Postby TJ.brooks » Wed Oct 05, 2011 09:14:56 PM

So there ya go....key words are" within the 2 year period" either a payment or written acknowlegment would reset the clock after that the consequence would be they cannot collect utilizing the courts. The debt still exist but they really have no means with any teeth to collect.
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RE: Payment After Statute of Limitations - Ontario (CBV)

Postby Greg_Ontario » Wed Oct 05, 2011 08:47:28 PM

Reading law is gobbledygook to me. :)

I found this:

Payments and Acknowledgements

The practical outcome of the decision is that the limitation period for ordinary demand promissory notes will start to run on the execution and delivery of the promissory note by the debtor. Under the Limitations Act 2002, each payment of interest or principal, if made within two years of the later of (i) the date the note is made; and (ii) the last such payment, will restart the limitation period. Similarly, a written acknowledgement of the debtor made within the basic limitation period will restart the limitation period under the Limitations Act 2002.

If the said two-year limitation period expires before demand is made and a statement of claim issued by the holder, the holder is prevented by law from enforcing a claim against the debtor by court proceedings. Although this may not necessarily invalidate the promissory note as an obligation per se, for all practical purposes the note then has no value. It is commonplace to use demand promissory notes in many situations, and the expiration of collection rights under such notes two years after the later of the date the note is made and the date of the last payment would have grave consequences.
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RE: Payment After Statute of Limitations - Ontario (CBV)

Postby TJ.brooks » Wed Oct 05, 2011 07:46:09 PM

This is the section of the act that pertains to your questions,,,,,specifically section 9 and 10

Acknowledgments

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).

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RE: Payment After Statute of Limitations - Ontario (CBV)

Postby TJ.brooks » Wed Oct 05, 2011 07:15:19 PM

Exactly. If you get a copy of the Statute and read it...it is quite clear that a payment and or an acknowlegdement which must be in writing and signed by the debtor will only reset the clock if either of these two things is done while the SOL is still running. After it is past the 2 years....nothing you or the bank or collection agency can do to re start it.
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RE: Payment After Statute of Limitations - Ontario (CBV)

Postby Greg_Ontario » Wed Oct 05, 2011 07:00:32 PM

That's contrary to everything I've read. Then again, I may have been off on my understanding.

So are you saying that it can only be reset by payment or acknowledgement within that first 2 year window? And anything after that, in court, you can still use the defence that the SOL ran out?
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RE: Payment After Statute of Limitations - Ontario (CBV)

Postby TJ.brooks » Wed Oct 05, 2011 06:35:55 PM

The bank can take the money but it will not rest the clock if it has already expired. When you refer to making a payment or acknowledging the debt that only applies within the 2 year window. After 2 years nothing you do can reset it.
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RE: Payment After Statute of Limitations - Ontario (CBV)

Postby Greg_Ontario » Wed Oct 05, 2011 06:32:24 PM

From my understanding the SOL can be reset by payment or written acknowledgement of a debt by a debtor -- in this case, me.

I've been reading up on Right to Set-Off, but haven't read anything that covers my situation.

I want to know if the bank can use the money taken by Right to Set-Off and reset the SOL.
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RE: Payment After Statute of Limitations - Ontario (CBV)

Postby TJ.brooks » Wed Oct 05, 2011 06:21:11 PM

No..once the stat has run out it cannot be reset. What the bank has done is exercise its Right to Setoff....and can continue to do so until debt is paid.
Only advise I can give is switch banks as they cannot withdraw funds from other banks without court order which cannot be obtained now due to stat expiring.
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