Trouble Just Follows Me!!

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Frenzied

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Trouble Just Follows Me!!
« on: March 23, 2015, 02:36:13 PM »
About three years ago my wife and I split. Our court order said I had to immediately have a pension valuation done and transfer half to my ex. I didn't do it and 8 months later I filed for bankruptcy. A stay on the pension payment was stayed by my trustee and I kept my pension intact. In a case settlement conference which I initiated to get extra visitation to my son, I in turn agreed my ex could do whatever necessary to lift the stay of proceedings and get half my pension. She hired a lawyer and got the stay lifted. I am still in bankruptcy. Didn't get my discharge after 21 months because of non-payment of surplus income. Now, my ex has billed me for the lawyer's fees she paid to get the stay lifted. She says if I don't pay she will bring the matter to Small Claims Court. I figure she is bluffing and that Small Claims Court is not the place for this to be brought to for settlement. I think I'm going to ignore her request for payment. Any thoughts out there? 

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NotATrust-E

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Re: Trouble Just Follows Me!!
« Reply #1 on: March 23, 2015, 04:01:57 PM »
Generally, applications to lift the stay are done under Section 38 of the BIA and I'm going to assume that this is the case, but your situation may be different.  This section reads "the creditor may obtain from the court an order authorizing him to take the proceeding in his own name and at his own expense and risk... . So, from my reading of this section, your ex-wife is the one that bears the costs BUT 100% of the funds go to her.

Edit: That section applies if the trustee would have had access to the funds in the pension.  Stays are usually lifted under Section 69.4, which I have included below. However, I think my interpretation of the court order in the next post is still correct.

A creditor who is affected by the operation of sections 69 to 69.31 or any other person affected by the operation of section 69.31 may apply to the court for a declaration that those sections no longer operate in respect of that creditor or person, and the court may make such a declaration, subject to any qualifications that the court considers proper, if it is satisfied(a) that the creditor or person is likely to be  materially prejudiced by the continued operation of those sections; or (b) that it is equitable on other grounds to make such a declaration.
« Last Edit: March 29, 2015, 09:47:45 PM by NotATrust-E »

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Frenzied

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Re: Trouble Just Follows Me!!
« Reply #2 on: March 25, 2015, 09:19:02 AM »
Thank you for your response. Just an update. My ex sent me a copy of the Order she got from the bankruptcy court. There are 3 rulings. 1. The stay is lifted. 2. my ex has leave to enforce her claim (half my pension). 3. "and it is ordered that there shall be no costs." Can I assume by ruling #3 (no costs) that this means she has no possible way to come after me? Or does Ruling #3 mean that she was ruled exempt from costs for filing the motion and it has no bearing on me? Hope you can understand this. I am somewhat confused. Hopefully in the near future I can get all this behind me and start fresh. I have made quite a few mistakes in the last few years which I now regret. Thank you.

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NotATrust-E

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Re: Trouble Just Follows Me!!
« Reply #3 on: March 25, 2015, 11:24:31 PM »
I think that #3 means that no costs will be granted for either side - that each party will pay their own costs. I've seen it as "No Order as to costs" as well. Often, when one party loses, the judge will award costs against them - that is, the loser pays the winner's court costs. This seems to explicitly state that no costs will be awarded, which, I think is common on matters heard on consent. Bear in mind that I'm no expert on this.

Because bankruptcy court (and for that matter, small claims courts) are a provincial jurisdiction, speak to someone at the court office that granted the motion. While they can't provide legal advice, they may be able to tell you what the ruling means for you.

 

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