This is meant to be an overview of the court process and how Blue Moon Court Services handles each case, there can be situations that are not covered below. If you have any questions feel free to call our office for a consultation or to book an appointment.
An initial “no charge” meeting or review of the possible claim, either at our office or an appointment can be booked for an Account Representative to come to your place of business. At the meeting we will want to look over your paperwork and determine the likelihood of success, we do not take on claims unless we feel confident we can achieve a positive result. We will discuss our fees at this meeting and provide our forms for your review prior to signing.
A thorough public record search of the “Defendant” prior to filing is necessary to identify the correct legal name, the status of the possible business registration and the assessment of assets or collection-related activity against the Defendant. This is a crucial step in the process as an error in naming the Defendant in the initial filing process can result in added expenses down the road for amendments or it could jeopardize the successful collection of a Judgment.
Professional preparation and wording of the Civil Claim. We have handled almost every type of possible claim over 17 years with proven results which means we have an extensive library of templates for any imaginable type of claim. We can also create customized wording for a claim that is unique.
Service of the claim either by Registered Mail, Personal Service or by seeking an Order for Substitutional Service in the situation where a Defendant is refusing service or is attempting to hide or avoid service. If the Defendant has moved we provide skip-tracing services to locate a new address.
In the case of the Defendant not filing a Dispute Note within the prescribed deadline a Default Judgment will be prepared and filed. This includes the filing of the Affidavit of Service and/or it may involve the preparation of an Affidavit in Support for a Default Judgment along with a possible Assessment Hearing. Out of pocket expenses will be awarded along with Interest under the Judgment Interest Act or contractual interest. The claim then proceeds to the Judgment Enforcement stage.
In the case of the Defendant filing a Dispute Note (with or without Counterclaim), the courts will set down a Mediation Session. We will review the Dispute Note and attend the court date with the client. The Mediation will take 2-3 hours and involves discussing the case with two court-appointed Mediators and with the opposing side. Less than half of the cases that go to Mediation are settled and resolved at Mediation. If the claim is not settled a Pre-Trial Conference will then be scheduled.
We will be required to exchange evidence with the Defendant or the Defendant’s representation prior to attending a Pre-Trial Conference. We will attend The Pre-Trial Conference with the client which will take 30-60 minutes and will be before a Judge in a private room, not a courtroom. The Judge will ask questions of both sides to determine the possible length and complexity of the case and also to encourage a possible settlement.
Failing settlement at the Pre-Trial Conference a Trial Hearing will then be set down. A Judge may have ordered a further exchange of documents or other requirements to be completed prior to the Trial date. We will ensure the conditions of the “Judge’s Order” have been met and we will secure any necessary witness in support of the claim. Most claims are set down for a ½ day of court time, in more complicated matters a full day of court time will be given.
In the period of time prior to a Trial we may have an opportunity to speak further with the Defendant or the Defendant’s representation about the possibility of settlement. An area that we excel in is the ability to negotiate effectively and obtain a reasonable and fair settlement for our clients. We will not recommend settlement to our clients if the opposing side is “low-balling” or if the offer does not meet a threshold of what can be expected through Trial with the evidence that has been disclosed.
A Trial Hearing is typically the last step through the Small Claims Court process. We handle all of the in-court presentation and questioning while our client is called as the primary witness to the claim. We conduct the cross-examination of the Defendant’s witnesses and provide an Oral Summation for the Judge at the conclusion. In some rare cases, the Judge may ask for a Written Summation, we would provide this as well if required.
A Judge will make a final ruling of the Civil Claim (and the possible Counterclaim) and award a monetary amount. Upon a successful ruling we make a final submission on the costs we are seeking for our client, this typically is awarded in relation to the length of the Trial and the amount of the claim.
A Judgment can be awarded as a result of a Default, through a breach of an Agreement (Mediation or Pre-Trial), or at Trial. In any of these circumstances, the claim has come to an end in the Small Claims process and is now transferable to the Court of Queen’s Bench of Alberta (Queen’s Bench) for enforcement. We will automatically file a “Writ of Enforcement” at Queen’s Bench, by doing so the Courts will also provide an update to any credit reporting agencies which will result in the Judgment appearing on the Judgment Debtor’s credit report. A Judgment is enforceable for up to 10 years, and can be renewed for a further 10 years.
With a Writ now filed, we can proceed to attempt enforcement on a bank account, wages, or receivables by issuing a Garnishee Summons. There are searches we can conduct to locate bank and employment information that will assist in the success of enforcement.
If the Judgment Debtor owns land, we would file the Writ of Enforcement against it. This applies to any land owned in Alberta and not just the property that the Creditor may have provided goods or services for. A Writ registered against land is generally a permanent registration until paid out removed in the case of foreclosure. In the event of foreclosure the Judgment Creditor may be receive a full or partial payout, but in most foreclosure cases there are no available funds.
After registration of the Writ against Land, we may suggest further action by preparing and serving a “Notice of Sale of Land”. The service of this document through a Civil Enforcement Agency (or Bailiff Company) starts the process to force the sale of the land to satisfy the Writ of Enforcement. The initial notice has a 180 day period, at the expiration of this time period if the Judgment Debtor has not made arrangements to pay out the Writ a further “Notice of Method of Sale” is prepared and served, this notice has a 30 day period.
If efforts to Enforce the Judgment through Garnishee has not been successful and if Registration against land is not possible or if forcing the sale of land is not feasible, we may then proceed with a Seizure of Assets under the rules set out in the Civil Enforcement Act. A Bailiff can be instructed to attend the Judgment Debtor’s business or home and seize assets that are believed to be owned by the same entity in which the Judgment has been issued against. Assets seized can be removed or left under a “Bailee’s Undertaking”, depending on the type of assets and the circumstances of the file. At this stage the Judgment Debtor may object to the seizure or they may want to arrange for payment of the Writ along with associated Bailiff charges in order to avoid further removal or sale of the assets seized.
We will also represent clients that have been named as a Defendant in a Civil Claim. Our role through the process is very similar to acting on behalf of the Plaintiff and our fee structure is essentially the same