Gordon R. Laing, Sheriff, Sheriff's Office Saskatchewan Justice Room Spadina Cresce.ntEast Saskatoon, Saskatchewan S7K2H8

Transcription

1 ) Gordon R. Laing, Sheriff, Sheriff's Office Saskatchewan Justice Room Spadina Cresce.ntEast Saskatoon, Saskatchewan S7K2H8

2 THE SHERIFF SPEAKS 1. II. III. REQUIREMENTS IN REPLEVIN MATTERS REPLEVIN PROCEDURES SEIZURE AND SALE QF LAND 5 9

3 THE SHERIFF SPEAKS REQUIREMENTS IN REPLEVIN MATTERS Generally, Part 34 of the Saskatchewan Rules of Court covers the requirements with respect to a writ of replevin. To begin with, each replevin must be accompanied by a bond. This bond, as prescribed in the rules, can be one of four different types. I, personally, will accept three of them, provided of course, that they are in the correct form. They are the insurance company bond, a cash bond, and an irrevocable letter of credit from a bank or credit union. The fourth is a bond of sufficient surities. This type of bond is not one of my personal favorites, for reasons to be covered later. My perference is a cash bond. It is easy to handle, reqires little maintenance, and required little forethought as to its acceptability. A cash bond is left with me, and on your instructions, is invested until such time as the court releases it. At no time does the defendant get access to these funds, until such time as the courts decide he has a right to them and orders the funds paid over to the defendant, or into court, as the case may be. The irrevocable letter of credit is almost on par with cash, in that it is relatively quick to obtain, and can allow a replevin to be acted uupon quickly. One point I wish to draw to your attention is that the irrevocable letter of credit should not contain, or otherwise indicated anywhere on the document, an expiry dat.e. Should such a letter be received, that is one with an expiry date on it, do not be suprised to see your writ refused, until such time as the date is removed, or extended to the satisfaction of the sheriff charged with the execution

4 2 It is my suggestionthat, where the bank will not issue a letter with no expiry date, you should insist on a minimum expiration period of two to three years. Anything less generally unacceptable by all sheriffs in that once the replevin has been done, the sheriff's only other duty is tmoact as a custodian for the bond, until such time as the court directs its release. By having a short date on the letter, the sheriff must then monitor the letters closely, in order to insure that the letters are called soon enough, or that they are extended by the bank. The general consensus among sheriffs is that this type of task is one that is better handled by the lawyers. It is-my understanding, however, that some banks are becoming more reluctant to issue long term letters, so it would be in your best interest to contact the bank, in order to determine the duration for their letter, then armed with that information, contact the sheriff nearest the location to the goods to be replevied, and determine whether the duration you have will be sufficient for that particular sheriff. In this respect, I cannot speak for any of my colleagues, in that even the rules contemplates that the sheriff must be satisfied that he holds a bond of sufficient surities before he can proceed. I cannot emphasise enough that if you have a doubt as to whether or not your letter of credit is, or will be acceptable, please, out of abundant caution, contact the sheriff who will be acting for you. The insurance bond is also readily accepted, but, as I understand, are somewhat expensive to purchase. With these types of bonds, your client should be made aware that the bond must be renewed every year, or when ever arranged between the insurance company and client. These bonds cannot be allowed to elapse, as with the irrevocable letter of

5 3 credit. An important aspect to remember is that the bond, of what ever nature, should be dated and executed AFTER the commencement of the action. If it isn1t, then portions of the bond will be false, rendering the bond useless, and of no value. The writ itself should have as complete a discription of the goods to be seized as is reasonably possible. The purpose for requiring such a description is simply this. I will not, nor will any other sheriff cotemplate seizing that which cannot be identified. Please be specific when describing the item(s) to be seized. A good description can cause the writ to be expedited, to the benefit of your client, not only in having the seizure done, but by also reducing the time expended by the sheriff and his personnel, thereby reducing the hourly fee charged. In the event you wish to have the statement of claim served at the same time as the replevin is being done, please ensure that you have provided sufficient copies of the statement of claim to the sheriff. This is a common procedure, and one that often saves the bother of having someone else do it at a later date, although, that decision is up to you. This, at last, brings me to the letter of instruction, which must accompany everything that you send to the sheriff. Your letter should be exact in the instructions you want undertaken on behalf of your client. A vague letter will only induce delays and cause a strain on the situation, particularly if there are time constraints in performing the replevin. I would prefer, and I believe this to be true for all ) sheriffs, that your instructions must be clear, concise, and thourough, stating who we are taking what from and where it is to go once taken, and finally to whom it is to be delivered.

6 4 I would prefer that there be a description of the goods to be seized contained within the letter of instruction, although I realize that this is not always practical. Your letter of instruction should also contain some mention of how the sheriff1s fees are to be paid, whether they are to be deducted from a deposit or deposit account, or if there is to be a rendering of a bill for services after the seizure has been done. I would again advise you to contact the sheriff you will be dealing with, as again each seems to prefer a different method of payment. In the event your client has specialized equipment, which might be utilized in the seizure, you should convey that information to the sheriff at once. For obvious reasons, this would greatly assist in the removal of the goods, and so should be included in your letter of instruction. One final note on the requirements. It is not absolutely necessary, however, it is desirable that you be available for contact on the day the replevin is to be done. This is desirable as a precautionary measure should there be some difficulty in the field, or in the event a question of law is raised. Since we are taking our istructions from you, it would only follow that, in the event there are questions, we would look to you for your advice. If you are not going to be available, then perhaps arrangements could be made with one of your colleagues, to be on standby if needed.

7 5 II REPLEVIN PROCEDURES A writ of replevin is, on its own, one of the most powerful tools a creditor has available to it, for the purpose of recover"ing items which the creditor alleges, in its action, have been wrongfully detained or taken. In preparing your replevin for execution by a sheriff, it is recommended that you contact the sheriff at the judicial centre nearest the location to the goods you desire to be seized. The purpose for doing this is twofold. Firstly, it will settle, in your mind, exactly what the sheriff requires by way of instructions, bond, and other related material, although, I am satisfied that should you follow the few guidelines that I will be relating to you, your documentation should be universally accepted throughout the province. The second reason for your contact is to establish the timing of when the replevin can be done. Each of the sheriff's office is staffed differently, and it may be required to have a sheriff or deputy sheriff brought in from another centre to either do or assist with the seizure. This would also be a good time to begin laying the ground work for the logistics involved in the replevin. Where the item is small enough so that it could be carried by the sheriff, not much discussion would be required, however, if the item to be seized is something like a D-8 Caterpillar, then, obviously, there would be a requirement for some specialized form of transportation. The arrangements for this are usually left with the lawyer in charge of the file. The purpose for arranging transportation in this fashion is that often the item being seized has originated from the plaintiff's business, and as such, the plaintiff may have this type of specialized equipment readily available, at a cost which, in all likelihood, is substantially less than what I, or any other

8 6 sheriff might be able to arrange. Having completed this aspect, the lawyer should then proceed to the commencement of his action, if that has not already been done, and then to the finalization of his documents, including the statement of claim and the writ of replevin, being careful to name the sheriff at the judicial centre closest to the location of the goods to be replevied. The complete package should be forwarded as soon as is reasonably possible, so that the sheriff can review them and advise whether any other material will be required. These types of writs are of a nature that we, as sheriffs, do not wish to have them laying about any longer than is necessary, as we would rather get them done as quickly as staffing and logistical arrangements can allow. Once the sheriff has conveyed a date and time to you, you should then advise your client of when the event will be taking place, as it is the purpose of the writ to cause the re-delivery of goods to the plaintiff. As such, it may be desirable for the plaintiff, or an agent to be present to take delivery of the goods, since the sheriff is not authorized to take and hold goods. The sheriff's duty goes no further, after seizure, than to deliver the goods to the plaintiff or the plaintiff's agent. Once the seizure has been made, the sheriff would serve a copy of the replevin on the defendant, together with the statement of claim, if so requested

9 7 The bond itself is usually assigned at the same time, although, in the instance of a cash bond, or letter of credit, a copy of the bond is given to the defendant instead. Should the defendant not be found at the site of the seizure, the documents can be left with an adult person at the defendants usual or last place of abode, or if no such person is there, by posting the documents in a conspicuous place on the premises, or if the defendant has no known residence, the documents would be posted in the office of the issuing local registrar. As a side note on the foregoing, and since some practioners may end up representing the defendant in an action such as this, I wish to advise you that the sheriff will not serve the replevin documents on the defendant until until he has seized that within the writ of replevin or any part thereof. I make this note so that, should the occasion arise, where a defendant calls you saying that the sheriff is seizing his goods, but won't give him any documentation, you will have a better understanding of why no documents will change hands until after the seizure is complete. Rule 409 of the Saskatchewan Rules of Court is quite express on the sequence of how a replevin is to be done. Once the seizure is done, and the goods delivered, the sheriff will make his return to the court as quickly as possible. I should advise you that all replevins are not necessarily successful. There have been occasions where some of the goods, or all of the goods

10 8 cannot be located. If this is the case, the sheriff is obliged to conduct an investigation in an attempt to locate the goods. Please bear in mind, however, that such an investigation, in most instances would take place at the outset of the sheriff's arrival at the location, and while this investigation should be thourough, it will not be an all exhaustive seach. To undertake such an investigation would be unfair to you and your client, especially if there were a lot of people in attendance being paid for waiting time. It is my practise, generally to hold onto the writ and continue an investigation for only a short period of time. This would likely only occur if the defendant was not aware of my presence at the location. Once the return has been filed with the courts, the sheriff would bill out his fees to the solicitor on record, or in the instance where a deposit on costs has been made, debit that account, return any excess, or bill the solicitor for any shortfall. Once payment for these costs has been obtained, the file is closed ant the sheriff's end of it is complete. The bottom line for a replevin is that the rules specify very clearly what will transpire, however, it you are not certain, please feel free to ask, and be sure the sheriff you ask is the one who will be acting for you in the enforcement of the replevin.

11 9 III SEIZURE AND SALE OF LAND The Executions Act gives the sheriff the authority to sell the lands of an execution debtor. In the event you wish to have the sheriff proceed in such a fashion, I would like to cover the requirements that must be met prior to any sale of lands, under execution. Firstly, the writ of execution, itself, must be properly registered in the land titles office within whose district the land is situated. Secondly, one year must have elapsed from the day on which the first writ affecting the debtors lands was delivered to and accepted by the sheriff. The only variation on this is when the writ is transferred from the original place of filing to another sheriff. The time then begins to elapse from the date the writ was received and accepted by the new office. Thirdly, the sheriff must have given a return of nulla bona, which incidentally may be delivered anytime prior to the sale. And fourthly, that the creditor has obtained leave from the Court of Queen's Bench. The creditor will also have given a 30 day notice to the Provincial Mediation Board. I wish to make you aware that notice requirements may be dispensed with upon application to a judge or local master. Once the preliminary items have been taken care of, and your letter of instruction, together with the required leave from the court have been forwarded to the sheriff, the ground work for the sale can begin.

12 10 The sheriff obtains a true copy of the Certificate of Title to the land in question, together with a General Registration Certificate under the name of the debtor. The sheriff will then choose a sale date approximately 2 to 2 1/2 months down the road. The primary reason for doing this is to allow for suff"icient time to post the sale notices, which must be up 45 days ahead of the sale, and no less. This time also allows for the delivery of the notices of sale, by registered mail, to the debtor, or registered owner of the land, which ever the case may be, and to anyone else whose name appears on the Certificate of Title, or General Registration Certificate. This is done so those parties with an interest subsequent to the writ will have an opportunity to redeem by purchasing the land if they so wish. Any prior encumberance, of course, would have to be paid. Again, such notice, that being to the debtor, can be dispensed with by an exparte application to a Queen's Bench judge or local master. The sale notices are posted in the offices of the sheriff and local registrar closest to where the land is located. At the same time, advertising in a newspaper published nearest to where the land is located is arranged to be done once a week for four consecutive weeks, with the last publication taking place no less than 10 days prior to the date of sale. Here, I would like to point out that if there is a valid reason, the courts will designate a different newspaper in which to publish the notice of sale. On sale day, the sheriff, for the purpose of his return and affidavit, will make notes of the number of persons in attendance, all bids, who

13 11 the purchaser is, and the terms given to the bidders. Generally, the terms are a re-cap of those set down in the notice of sale. In the event that there are no bidders, or that the bids obtained are insufficient, the sheriff is required by The Executions Act, 25(2), to adjourn the sale and post new notices in the fashion previously described. If, however, the sale succeeds, a deposit, as outlined in the sale notice, and in the terms given to the bidders, is taken, and the sale is closed. Upon payment of the balance of the purchase money, an application to confirm the sale is made. Rule 374 of the Saskatchewan Rules of Court provides: "374. In all cases where lands are sold under execution the sheriff shall give conduct of the proceedings to confirm the sale to the party or one of the part-ies under whose special instructions the lands have been sold..." Since this rule is unclear as to whether the transfer is to be completed by the sheriff, or by the execution creditor, it is my preference to do it myself. personal Once the transfer, in Form GG is completed, it and the order confirming sale are forwarded to the land titles office for registration. Note, this must be done withing 2 months of the date of the order confirming sale, unless that period is extended by order of the court, or a judge. Once the order and transfer are accepted at land titles, the registrar holds the transfer for 4 weeks. If there is no stay on the transfer,

14 12 it is then registered after the expiration of the fourth week. The existing Certificate of Title is cancelled, and a new one issued in the name of the purchaser. The funds realized from the sale are held pursuant to The Creditor's Relief Act, with the calculation of the 2 month waiting period beginning on the date the sale was confirmed. As such, you can see the importance of notifying the sheriff the instant your sale is confirmed, as any delay wil? unnecessarily delay the payment out of the funds. It is the normal practice to recover the sheriff's fees from the funds received as a result of a successful sale. You should be aware, however, that it is also normal for the sheriff to ask for a deposit on costs, in advance, from which he can pay any disbursments arising out of the sale.