Perseverance pays

Debtors that flee fast and far when confronted with repayment cause innumerable problems for finance houses and restitution agencies. But, with a little legal know-how and a fair dose of perseverance, even the flightiest can be made to pay what they owe.

Some time ago, we at Restitution acquired a debt from a local Jersey finance house, of a lady debtor who had once had a well-paying job in the finance industry but then suddenly disappeared to London. She was traced by the finance company, who communicated her obligations to her, but she decided not to pay and again disappeared – this time to Canada.

Our first action after acquiring her debt was to track her down across the pond, which we managed in short order. Little did we suspect the merry dance she was about to lead us on.

Firstly, she employed a lawyer to argue that she was not the debtor in question, as her name was different. She had recently changed the last letter of her name but, despite this grand illusion, we were certain she was our debtor.

We then discovered that she was the part-owner of a property, which she had sold immediately before we caught up with her. She proceeded to move around Canada and repeatedly give out false addresses, to frustrate any attempts to track her down.

Canada is quite a difficult jurisdiction in some respects, and one particularly intricate piece of our research centered on how to enforce our judgement. Legal judgements and debts in the UK can be enforced by foreign authorities (and vice versa) if reciprocal jurisdiction is enshrined in a bilateral agreement. However, as a Crown Dependency, Jersey is not considered formally part of the United Kingdom unless mentioned by name.

While Canada and the UK do have a bilateral agreement in place, bringing with it reciprocal jurisdictions, this does not extend to Jersey.

This meant that we had to get our judgement against the debtor recognised at common law within Canada to proceed. To make matters worse, she had vanished again.

In the meantime, we started to come across Canada’s rather interesting prescription laws. For my non-legal readers, prescription is the process by which rights, immunities or obligations are acquired as a result of the passage of time, which in this case would function as a statute of limitations on the debt. If we could not collect before the prescription law limit, the debtor would be able to file a court defence citing the expired limitation period.

In some Canadian territories, this is only two years, even on a contract. In others, it is six and in some, ten years. While researching the issue we tracked down, once again, our flighty debtor. Her Facebook, which showed her draped provocatively over a Mustang, revealed she was now married to a member of Canada’s Armed Forces. She also had property in her name, meaning an asset we could claim. So far, so good.

The problem was that our Judgment, or to be more exact, a Judgement taken in the name of the finance company, was dated 2011. We were never going to get that recognised at common law and we definitely could not have it registered.

We were determined not to let our debtor get away with borrowing money and absconding, so we went back to the Court in Jersey. The finance company abandoned its original Judgment and then we assigned the debt itself to us. Previously we had had the Judgment, not the debt, assigned to us, meaning that the Judgement itself was still dated 2011. We started proceedings based on the new assignment, which meant that we could continue as before.

These proceedings were duly served on the lady, at her newly discovered address. Previously, service had been on her last known address, which was not helpful from a Canadian point of view as everybody knew she had gone.

We then started proceedings in Canada to enforce our debt at common law, to circumvent the issue of jurisdictional reciprocity. Along the way we found out some very interesting things about the Canadian legal system.

Our local agents reported that not only was there was over C$150,000 worth of equity in the joint home, but she was also driving yet another high-end motor car: a Porsche. We finally got her attention and we finally obtained monies.

Despite fleeing across the world, hiring legal representation, changing her name and repeatedly upping sticks to move elsewhere, this debtor finally had to admit that if you borrow money, you are going to have to pay it back someday. We have a motto internally: we never forgive and we never forget, but this was an extreme case even from our point of view.