(The 2 threads are crossed. Also see thread no.1355)

Thanks for responding.

However, I mentioned Rule 16(7) and the the 3 conditions of Section 43 of the BC Small Claims Act in my Oct 22 post to Katinthehat.

I was quite certain that the major problem he was facing was in meeting condition (c) of Rule 43. Even if ARO didn't serve him with proper notice, deliberately or accidentally, I told him it still doesn't mean he would be granted a retrial because he would have to show the Court he has a credible defence to the claim.

In Ontario, and other provinces, you can make a motion to set aside a Small Claims Court default judgment if you weren't properly served. For example, see Rule 11.06 of the Ontario Small Claims Court Act.

http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_980258_e.htm

Other provinces have similar provisions as one would expect since basic principles of justice mandate it. Otherwise, plaintiffs with valid claims would find it onerous to enforce judgments. Any defendant who knew they had no valid defence would simply not show up in court and wait until the plaintiff had caught up to him, perhaps years later.

When that eventually occurred, the defendant would be secure in knowing they could invariably file a motion to have the default judgment overturned using the excuse they were never properly served. To preserve fundamental justice, the Court insists the person making the motion isn't merely wasting everyone's time with stalling tactics, but instead demonstrate the existence of a credible defence.

Thus, I'm not quite sure what is happening in this case. If he's been granted mediation, then that would imply he will get a retrial should that mediation fail.

Nevertheless, as far I can see, he still has no valid defence to the debt itself that the court will accept. Yes, the Court agrees he wasn't served properly, but in Ontario and in other provinces, that's a necessary but not sufficient condition for setting aside default judgments. The BC Small Claims Act also seems to concur as per Section 43(c) when it stipulates that the defendant would have to show why he didn't owe the money.

c) [the defendant must show] the facts that support the claim or defence.

Based on what been said so far, the only foreseeable possible defences are

1) Claim the debt was stats barred when the claim was originally filed in 2006.This would require that ARO fail to produce written evidence of any payments after the year 2000. Unfortunately, the defendant has told the Court (and anyone else who would listen) about late payments made to a 3'rd party collection agency acting for HBC/Zellers/GE Capital in 2001. Apparently, ARO had no record of these payments at the time of filing in 2006. If ARO manages to retrieve them, this defence will be nullified.

2) Show the Court that the amount of the original judgment rendered was substantially in error. This will only work if ARO didn't obtain the detailed (instead of summary) acccount statements on his debt from HBC when they bought it. But I know they almost always do. Besides, they would have had to present them to the judge to get the default judgment in the first place.

Generally, you can only file a counterclaim if you are granted a retrial, since that's when you would be allowed to file a statement of defence to the claim. At this stage, it's not clear if that is going to happen judging by the judge's recent comments. Irregardless, there's nothing to stop Katinthehat from initiating a separate action to recover damages if things don't work out.

Ray

That might be an error. I haven't found anything in provincial consumer acts like the British Columbia BPCPA or the Manitoba and Ontario Consumer Reporting Acts that stipulates this condition. Perhaps "Nameuser" could corroborate by disclosing the source(s).

Ray

"Collection agencies are limited to doing a credit inquiry once every 6 months, the rule is never followed but they are supposed to be fined or removed access when in violation of this. "

Can you tell me where you are pulling this data from? I'd like to obtain either a hard or soft copy of that legislation for my records.

Thanks,

O.C.

I replied to the other thread and just saw this.... The postings on this forum are all over the place....

You are right about the complaints, they get alot and rarely is anything done.

Collection agencies are limited to doing a credit inquiry once every 6 months, the rule is never followed but they are supposed to be fined or removed access when in violation of this.

I understand what you are saying. The debt was handled by a 3rd party agency in 2001, but Zellers still owned it until they sold it outright to ARO later on. When ARO purchased the debt, they were supposed to get all the paperwork and account statements that go with it so they could sue on the account if it wasn't stats barred. I have no way of knowing if the paperwork ARO got was complete or accurate so as to include the 2001 payments to a third party agency.

Maybe that other guy from BC, Nameuser can add more.

I still don't know what the court will do in such a case, but you still can't assume they will dismiss it.

More about PIPEDA later, I gotta go out.

Ray

The only thing I want removed from my Equifax report is the number of times ARO has gone in to check my report. this harms your credit score. Do they have legal rights to do this. If so, then I won't bother to ask that these be removed. If they don't have legal rights to check my credit report then I will see if they can be removed.

"however, our Small Claims Courts don't require registered mail so collectors can easily get away with "... I have the paperwork to show that one paperwork served to the wrong address was returned by that person, "does not live here", I have printed from Canada Post to show that it did go back to ARO on a date, yet they never advised the courts that this was NOT served. That is why the bench warrant happened. I never showed up, never knew. But ARO knew that I never got the paperwork because it was RTS with proof from Canada Post.

"The fact that they didn't serve you correctly in 2006 may not exempt that"... I never lived at that address in 2006. I have proof to that also, with Rent/Cable/Employee stubs/ etc to show my address. Again, they knew I never got this paperwork and did not let the courts know. Showing this in mediation for TWO times... there must be a law on this that they can';t mislead the courts this way.

" The payments made in 2001 to a 3rd party agency reduced the principal but renewed the limitation period.".... how can HBO/Zellers ask a collection agency to collect on a debt, when it was with a different company in 2001? HOw can they supply paperwork to HBO for 2000? when that amount would not be correct? If HBO gave this to a collection agency in late 2000/2001 how can they submit paperwork to ARO for early 2000? The amount owing woudl not be correct. IF the other collection agency gave it back to HBO, then the paperwork sent to ARO would have been dated 2001.

I don't expect much from these places I am going to complain to, but if everyone did this maybe something would happen for the future of these collection agencies using false information and false addresses for serving paperwork.

"you might want to order your PIPEDA file from ARO first so that you'll have the hard evidence on hand should Equifax only give perfunctory acknowledgment to your complaint.".... what is a PIPEDA file? Do I write ARO for this? I just search PIPEDA in google. lots of reading.

Well, if you were sued, someone in ARO's legal dept had to take you to court and falsely sign the affidavits of service. I don't know if ARO 's lawyer was involved or they just used a paralegal.

Currently, paralegals are not yet licenced under the Law Society of British Columbia as they are in Ontario. If they were, you could make an effective complaint to the Law Society. Only, if an actual lawyer was involved OR if false or misleading documents were submitted under a lawyer's letterhead does a basis of complaint exist.

Ray

"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."

Hmm. I'm not sure they will go that far, especially if the court knows about the late payments to the collection agency in 2001. The fact that they didn't serve you correctly in 2006 may not exempt that. I didn't see any BC legislation specifically addressing cases where it's obvious the plaintiff has deliberately mislead the court regarding service on the defendant. I think in Ontario, it wouldn't be thrown out; however, our Small Claims Courts don't require registered mail so collectors can easily get away with brazen lies.

Some of these things, unless they are written down, may depend on who the judge is that day. Come Jan.5, it'll be interesting to see what happens

Once again, with regard to a debt's limitation period, the 6 year criterion has nothing to do with the 6 year negative credit reporting period. It makes no difference who owns or handles the debt's collection. Every time you make a payment on it or provide a signed written acknowlegment of it, the limitation period gets renewed. The payments made in 2001 to a 3rd party agency reduced the principal but renewed the limitation period. That HBO retail card carried a 28.8% per month or 32.3% per year interest so interest accumulates almost exponentially. Theoretically, you now owe 3 times the original balance.

It's good that you are filing complaints with the 2 government agencies and Equifax. If everyone tied them up like that, they wouldn't be so quick to pull shenanigans. At the same time, I don't want to dampen your spirits, but I wouldn't expect too much out from any of the 3.

Equifax does whatever the collection agencies and debt buyers tell them to do. Therefore, IF the case ISN"T dismissed, you might want to order your PIPEDA file from ARO first so that you'll have the hard evidence on hand should Equifax only give perfunctory acknowledgment to your complaint. However, should a new trial be granted or a new judgment order made, your situation will ultimately be worse because you'll have a judgment on there from 2009 instead of 2006.

As for the Privacy commissioner they'll help you get your documents if ARO refuses, but they'll likely comply. ARO's official privacy officer is in Hamilton, Ontario, but the Kelowna ARO Office would likely be willing to handle the request for your file @ 1-877 250- 7070 ext 4002.

Unless the the BPCPA people are better than the ones we have in Ontario under Brian Pitkin, I wouldn't get too enthusiastic.

Ray

thanks Franniee2003,

Yes, I am now going to go after them. Serving paperwork to the courts knowing that I never recevied them TWICE. Lying to the courts. There must be a law against this.

At mediation that is what I am basing this whole thing on.

And I will fill in all the paperwork to complain against this company. I have found 3 different organizations (gov't) where I fell I have enough proof to put these complains in.

IF ANYONE KNOWS OF WHO I CAN COMPLAIN TO, LET ME KNOW. I WANT TO MAKE SURE I HAVE "ALL" THE RIGHT GROUPS/GOV'T OUT THERE. THEY HAVE LIED TO THE COURTS, AND I HAVE PROOF.