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CANADIAN INSOLVENCY LAWS: ALIENATION OF ASSETS

 

Canadian insolvency laws: Introduction

In today’s commercial world, our economy focuses on and requires Canadian insolvency laws. Insolvency is the financial condition where you cannot pay your debts as they come due and if you liquidated all of your assets, there would not be enough cash to pay off all of your debts.

Insolvency laws are required in a mature economy. It reassures investors that there is a way to “recycle” assets. Asset recycling makes them once again valuable and revenue producing, should insolvency set in on a person or company.

Canadian insolvency laws: My goal with this blog

An insolvency process is used as a means of liquidating one’s whole legacy (i.e. the totality of one’s assets) in order to attempt to please all of the creditors that have grown way beyond the ability of the person or company to repay. Emotions always run high in insolvency procedures. We are dealing with the lives of real people that may be losing their jobs, income, homes and other assets.

The purpose of this vlog is not to teach you about insolvency laws. I want to caution anyone considering going into business how important it is to structure things properly. Your aim is to make sure that you are protecting yourself, your business and your family. If your business falters and becomes insolvent you will be glad that you did.

Canadian insolvency laws: Believe it or not, it may be good for you to meet a licensed insolvency trustee

So naturally, as a licensed insolvency trustee (formerly called a bankruptcy trustee) the first focus is on restructuring. Sometimes bad things happen to good people and companies. Bad judgement, bad luck and bad management all contribute to personal and corporate insolvency. Our primary focus is to use various ways to help people and companies recover from insolvency.

The potential ramifications of insolvency procedures can be minimized. A person can no longer afford to keep their assets. A company has too many problems to continue its business. However, those same assets can be used very successfully in a new business or by someone else. So insolvency laws and procedures help to avoid a total loss of asset values.

In many of our cases, this can involve particular minor legal procedures which could eventually conserve a fortune. For financial institutions, this can be especially good news.

Canadian insolvency laws: Why you need to “alienate” your assets


If you are running a company, or are likely to do so in your career, you must minimize your exposure by safeguarding your assets. By doing so, you are protecting yourself and your family for the future, especially if something in business goes wrong. The time to protect yourself is when you are starting out and there are no problems. If you do so when the problems have already arisen, it is too late. Any asset protection steps you take knowing yourself to be insolvent, will not stand up to attack.

By running a company, you will probably become a Director. If your business needs to borrow money from the Bank to operate, you will probably be required to guarantee the bank debt. So, if you anticipate yourself collecting considerable unsecured financial obligations in the coming years, you need to act. Starting out properly protecting yourself, allows you to either avoid or successfully defend, any challenges on the sequestration of your assets.

Canadian insolvency laws: Why you want to be an “alien”

You will make sure that the properties you have “alienated” no longer form part of your estate. The alienation ensures that the possessions from which you will still benefit cannot be gotten by your financial institutions if the business is unsuccessful and they are looking for any assets you may have to honour the financial obligations you accumulate.what does a court appointed receiver do

Canadian insolvency laws: Use your lawyer


When setting up a company, you need a lawyer. Make sure that you choose a lawyer that can also counsel you on how to protect your assets in the event your business venture fails. We are not lawyers, and the general advice I am going to give you is not meant to replace the advice of a lawyer.

Canadian insolvency laws: You may need more than one company to conduct your business

The first thing to think about is incorporating a limited liability company. Depending on the type of business, you may need to incorporate several, within which to house your operations, the leased or owned premises you operate out of and your shareholdings. Conducting your business through a company will require more documentation and therefore cost.

However, it is well worth it. It removes and protects you personally to the greatest extent possible from personal liability. The goal is to minimize or eliminate the destruction of you and your family. If you choose not to go through a corporate body, for whatever reason, protecting your personal assets becomes even more important. There will not be one or more corporate entities to serve as the first line of protection.

Canadian insolvency laws: Examples of multiple corporations in running a business

Examples of how multiple corporations will better insulate you and your business assets are:

Operating company. Your operating company is the one you conduct business through. It is the vehicle which will attract the most liability. There is always a risk in running any business. However, there is no law that requires you to hold all your business assets in your operating company.

Single purpose corporation. You may want to incorporate a second single purpose company to hold valuable assets used to conduct the business of your operating company. Tangible assets such as machinery and equipment are obvious. You are operating out of premises; either leased or owned.

You may wish to have a corporation that holds the tangible assets. Another company that is simply the real estate company. If you also have valuable intangible assets such as copyrights, licenses, trademarks, you may wish a separate company to hold all of the intangible assets.

These single-purpose corporations will then lease the assets to your operating company to conduct its business. Your operating company will pay rental charges, lease payments and licensing fees to the respective sole purpose companies. You need your lawyer to carefully document in writing everything. By now you can probably see the value in separating out the various important and valuable assets from your normal business operations.

Canadian insolvency laws: Alienating your most valuable asset

The most significant and most important property most of us will own is our house. The time to transfer your ownership interest to your partner ideally is before the first day of your going into business. Waiting until there are business problems and you are insolvent, any transfer will be successfully attacked. Obviously, you have to believe that you and your partner have a solid loving relationship before making the transfer as you will no longer have your ownership interest in the house.

Canadian insolvency laws: Does your company have too much debt?

To set up your company and structure your affairs properly, we urge you to use the best lawyer for your needs. This blog cannot replace the advice of your lawyer. However, if your company is experiencing financial difficulties, you need a professional trustee. If yes, call the Ira Smith Team. Our approach for each file is to create an end result where Starting Over, Starting Now takes place. This starts the minute you are at our front door.

The earlier you contact us, the more options we will have to implement. Whether it is a corporate restructuring or personal debt settlement through a consumer proposal, the goal is to avoid bankruptcy. However, if bankruptcy turns out to be the best option, we can assist there too.

You’re simply one phone call away from taking the necessary steps to get back to leading a healthy, balanced hassle-free life, ending the pain and stress you are feeling forever. Call Ira Smith Trustee & Receiver Inc. today for your free consultation.canadian insolvency laws 1

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CORPORATE BANKRUPTCY IN CANADA: SADLY IN E-COMMERCE TAXLAND

corporate bankruptcy in canadaCorporate bankruptcy in Canada: Introduction

A brand-new report from PwC Canada discloses that in 2018, Canadians anticipate spending an average of $1,563, up 6.7% over last year. Men are expected outspend women by almost $400. That got me to start thinking about what the most complex issue for corporate bankruptcy in Canada is when an online business fails?

The report finds that the majority of Canadians still prefer the in-store experience. Nearly two-thirds consider brick-and-mortar retail for their primary holiday season shopping. The rest is online shopping. Unsurprisingly, most millennials (51%) think of online purchasing first, which is in line with United States consumers overall (50%).

E-commerce, like any other industry, has its startups and more mature companies. There will be winners and losers. The fulfilment of online digital products is done online. The fulfilment of physical goods orders bought online more often than not will be done by a third party. That third party may not necessarily be fulfilling orders from Canada.

Corporate bankruptcy in Canada: The most complex issue for an e-commerce business, IMO

With that said, the retail vendor’s inventory, computer hardware and software value are relatively easy to determine. But to my way of thinking, the #1 issue for corporate online vendors, both solvent and viable or insolvent and not viable, is the area of sales tax.

In attempting to abide by tax laws for your e-business, you might find yourself falling down the rabbit-hole, going through the looking glass, and attending a Mad Tea-Party.

Sound judgment, logic, and fairness never did apply totally to the field of taxation, however, this is specifically true of e-commerce deals.

Corporate bankruptcy in Canada: Canada Customs Welcomes You to Canada!

Considering that I’m situated in Canada, let’s start here. To keep things simpler, but certainly not simple, I will review this issue strictly from a Federal tax collection perspective, i.e. Harmonized Sales Tax (HST).

Canada has what you may call a nationwide sales tax or a value included tax (VAT). This Goods and Services Tax (GST) of seven percent is applicable to lots of Canadian transactions.

Not just is it critical to identify whether a taxable sale was made in Canada or not, but also where in Canada. If it was made (or deemed to be made) in any of the HST provinces, a higher rate applies. This is due to the fact that those provinces have allowed Canada to gather their provincial sales taxes for them, as follows:

 

ProvinceHST % rate
New Brunswick15
Newfoundland and Labrador15
Nova Scotia15
Ontario13
Prince Edward Island15


Each province and territory has its own guidelines. Ontario charges 8 percent retail sales tax on numerous common internet deals whereas Alberta has no provincial sales tax.

Obviously, this is just scratching the surface. This entire blog by necessity is an oversimplification of an extremely complicated topic. As a licensed insolvency trustee (formerly called a bankruptcy trustee), I would certainly require the advice of a professional tax advisor to help me through e-commerce Taxland.

Since I am not a tax professional, you should also seek the advice of a tax professional. This is merely one bankruptcy trustee’s view of the issues in the insolvency of an e-commerce business.what does a court appointed receiver doCorporate bankruptcy in Canada: When Exports Aren’t Exports!

In Canada, exports are “zero-rated” sales for GST purposes. This means that when you ship a product to someone outside Canada, you don’t charge GST. Yet, you get to claim (or subtract from the GST collected by you) all the “input tax credits” (GST that you spent for business functions) to make that export.

However, if you export items aside from physical products, beware! There are lots of mistakes to look out for.

As one example, think about digitized products that you may offer from Canadian sites, such as e-books, downloadable software application, or subscriptions to a material. You would be considered to be selling “intangible personal property”. Unless your item is also thought about “copyright” (such as software or e-books that you produced or have gotten the rights for), you will need to charge GST. The reason, according to the Canada Revenue Agency, is that it could be utilized inside Canada, even if it isn’t.

Say you sold a subscription for accessing digitized content (from various sources) on your Canadian site to a client in the United States. Given that there are no restrictions regarding where the intangible personal property might be used, and the property is not considered copyright (nor the provision of a service), the American client goes through GST, even if he never comes to Canada.

Strangely, the same logic doesn’t apply when an American buys a routine book (or an automobile) which he could bring into Canada with him and utilize here. It holds true that it is much easier for Canada to assess such products at the border than in the online world. However, I have not heard of any cases of Americans being taxed on the cars and trucks or books they bring with them when they come to reside in Canada for a part of the year.

As a Canadian registrant, one way you might legally avoid this ridiculous March Hare is to clearly mention on your website and invoice that utilize of such intangible personal effects in Canada is restricted (or requires an extra charge and the payment of GST).

Corporate bankruptcy in Canada: When imports Aren’t imports

Goods shipped to Canada are subject to GST on importation. Such tax is often assessed at the border. What if you are a Canadian registered for GST, selling to a Canadian customer but your provider is in a foreign country?

Pretend that your Canadian consumer has bought a book from you from your Canadian website. Your dropship supplier is located in the United States and is signed up for GST. You send your order to the American business, and they, in turn, ship the book for you (total with Customs Declaration and their GST Business Number).

Since they paid the GST, you wouldn’t think you would need to charge it again, would you? “Wrong!”, smiles the Cheshire cat. Since you are a registrant located in Canada, you need to charge and remit the GST. But you are entitled to input tax credits, aren’t you? In many cases, the answer is “No”.

It might be very tough for you to satisfy the documentary and other technical requirements. As an example, it is not uncommon for American providers to absolutely refuse to provide an invoice breaking down the GST or to enable you to be the importer of record. This complicates their life unnecessarily and they just don’t require the aggravation.

There are easing tax provisions covering drop shipping, sales agencies, and other situations. In most cases, sadly, the most practical option is to permit the tax to be paid twice.

Corporate bankruptcy in Canada: When you are subject to tax where you’re not subject to tax

It makes sense that countries impose a tax on sales and earnings made in their own jurisdiction. Does it make sense for Germany to tax sales made in the United States?

Starting July 1, 2003, the European Union actually did just that by enforcing an online sales tax.

This implies that if somebody from England buys an e-book from somebody in the United States, the American should submit this tax. Naturally, If the sale was to someone in Germany, the tax rate would be more complicated.

The reasoning behind this is as follows: Since countries can’t gather sales tax on internet deals at their borders, the only method they can collect it (other than a self-assessment system) is with an online sales tax. Even more, it is claimed that companies in the European Union suffer a significant competitive disadvantage due to the fact that they need to gather Value Added Tax but others don’t.

Corporate bankruptcy in Canada: But that isn’t all


So that is just a “scratching of the surface” description of the issue for Canadian companies selling online when it comes to HST. But if the company is insolvent, and will go into either receivership or bankruptcy, the story gets worse.

For every insolvent company in receivership, an HST liability is a trust claim against the assets of the company. So in a liquidation, the HST liability would have to be paid before a secured creditor, normally a chartered bank, recovers any money. What this means for the owner(s) who guaranteed the bank debt, is that they have additional exposure for any shortfall of the bank debt by the amount of the HST liability.

In a bankruptcy though, the HST liability is not a trust claim, but rather an unsecured claim. So, the good news is that it does not come ahead of the bank debt the owners have probably guaranteed payment for. However, the bad news is that the HST liability is always a Director liability. So in a bankruptcy, there are always insufficient funds to pay off the unsecured creditors 100%. So, the Directors of the bankrupt company will be on the hook for any unremitted HST.

Corporate bankruptcy in Canada: Does your company have too much debt?

Is your company, either a traditional retailer, online retailer or both, experiencing financial difficulties? If yes, call the Ira Smith Team. Our approach for each file is to create an end result where Starting Over, Starting Now takes place. This starts the minute you are at our front door.

The earlier you contact us, the more options we will have to implement. Whether it is a corporate restructuring or personal debt settlement through a consumer proposal, the goal is to avoid bankruptcy. However, if bankruptcy turns out to be the best option, we can assist there too.

You’re simply one phone call away from taking the necessary steps to get back to leading a healthy, balanced hassle-free life, ending the pain and stress you are feeling forever. Call Ira Smith Trustee & Receiver Inc. today for your free consultation.

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CANADIAN BANKRUPTCY DISCHARGE: CRITICAL ILLNESS INSURANCE IN A BANKRUPTCY

Canadian bankruptcy discharge: Introduction

Many times during the administration of a Canadian bankruptcy, the licensed insolvency Trustee (formerly called a bankruptcy trustee) (Trustee) comes across a novel issue. The decision of A.R. Robertson, a Registrar in Bankruptcy in Calgary, Alberta in the bankruptcy discharge application of Shirley Rose Cooke has such an issue within it.

The case is Cooke (Re), 2018 ABQB 628 (CanLII). The issue that came before the Court was, what happens to a critical illness benefit payment for the undischarged bankrupt? Does it go to the Trustee or is the undischarged bankrupt debtor able to keep it? This topic should be of interest to accountants, lawyers, insurance agents and financial planners, in addition to Trustees.

Canadian bankruptcy discharge: The issue

Registrar Robertson described this case as an “interesting application” for bankruptcy discharge. The matter was heard on July 9, 2018. Ms. Cooke is 62 years old. She filed for bankruptcy on April 12, 2016. The issue to be decided is whether a critical illness benefit payment she obtained in the amount of $25,000, forms part of her assets which fall to the Trustee. The Trustee’s position was that it is an asset of the bankruptcy Estate and Ms. Cooke’s creditors are entitled to it.

Canadian bankruptcy discharge: The facts

In March 2016, Ms. Cooke was diagnosed with breast cancer. She went through surgery and had radiation treatments until July 2016. Prior to her medical diagnosis, she worked full time as a healthcare worker. She stopped working in March 2016 as a result of her diagnosis and need to undergo surgery and radiation. She returned to part-time work at her former employer, in about August 2016.


Her evidence was that at the time that she left her full-time work, her employer informed her she had the critical illness benefit policy and that she should apply under it. Apparently, she was unaware of this policy as being part of her benefits package. She applied for the benefit payment.

When she made her assignment in bankruptcy, she did not divulge the critical illness benefit application to the Trustee. She advised the Court that she did not have any type of certainty that she would receive the benefit. Eventually, she did, in January 2017. When she did, she advised her Trustee.

Canadian bankruptcy discharge: The Trustee’s position


The Trustee took the view that the critical illness benefit payment was a component of the insolvent person’s income under s. 67 of the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3) (BIA). S. 67 of the BIA deals with property of the bankrupt, while s. 68 of the BIA deals with surplus income. However, s. 67 of the BIA does cover certain exclusions of types of payments a bankrupt may receive. The kinds of payments carved out are normally government type payments that have an overarching social aim, such as GST/HST tax credit payments.

It was very clear from the evidence that had she known she was going to get a $25,000 insurance payment from the insurance company, she would likely not have entered bankruptcy. Had she divulged the benefit application to the Trustee, the Trustee may very well have recommended she not go bankrupt.

The Trustee desires that Ms. Cooke pay the amount of $20,000 as a condition of her discharge. The Trustee states that in dealing with this critical illness benefit issue, including research, its fee now approximates that amount. I find it interesting that the Trustee is requesting the majority of her critical illness benefit payment as a discharge condition.

If the Trustee truly believes that the benefit payment should be considered as income under s. 67 of the BIA, then the correct treatment would be for the Trustee to redo its surplus income calculation under s. 68 of the BIA for Ms. Cooke. Then see what her surplus income obligation would be. If the Trustee is really trying to say the benefit payment is an asset that should come to the Trustee, then they should be asking for the entire $25,000. From my reading of the Registrar’s decision, it appears that the Trustee did neither but merely is asking for an amount to cover its costs!

Canadian bankruptcy discharge: The Registrar’s analysis


The Registrar indicated that in order to determine what is the appropriate condition if anything, he would have to assess the fees charged by the Trustee. If the Registrar really meant that he would have to tax the Trustee’s fee and costs, that makes sense. Otherwise, I am not sure what the connection is between the Trustee’s fee and costs, and whether a conditional discharge should be granted.

Ms. Cooke’s legal counsel referred to the Registrar the facts under s.173 of the BIA that could lead to an absolute discharge from bankruptcy not being granted. Her legal counsel indicated that none of the factors that would allow for a conditional, suspended or refused discharge apply in this matter.

The Registrar encouraged both parties to provide him with whatever additional information or authorities they thought appropriate by Tuesday, August 7, 2018.

The Trustee provided the Court with additional material. One such item was a copy of a letter sent by the Trustee to Ms. Cooke advising that, in the Trustee’s view, the critical illness benefit is a survivor benefit and not a wage or wage substitute. So much for it being part of surplus income!

The Registrar correctly pointed out that none of the exemptions in s. 67 of the BIA mention a critical illness benefit payment. The Registrar could also not find a precedent exactly on point.


The closest cases the Registrar could find were those of when the undischarged bankrupt suffered an injury in a motor vehicle accident and had a claim for pain and suffering. In that case, the action is personal to the injured person, and therefore that claim does not fall under the definition of property of the bankrupt available to the Trustee.

The Registrar stated that he sees no sensible distinction why a tort-based damages insurance claim for pain and suffering would be dealt with in a different way than a contract-based insurance policy for the pain and suffering Ms. Cooke had from her illness.

Accordingly, the Registrar decided that the critical illness benefit payment did not create a component of property designated to the Trustee. He also stated that Ms. Cooke did not have to pay any amount, to the Trustee. The Registrar went on to say that the Trustee should have brought on an application to have this matter determined much earlier in the bankruptcy proceedings so that the Trustee would not have incurred as many costs as it had.

The Registrar directed that:

  1. Although the Registrar did not explicitly state it in his judgment, the implication certainly is that Ms. Cooke received an absolute discharge from bankruptcy.
  2. Moreover, the Trustee should bring on the application for the Trustee’s discharge.
  3. Similarly, the Trustee should keep the Registrar’s comments as to the Trustee should have brought on a motion on the critical illness benefit issue earlier when submitting its dockets to have its fee and costs taxed by the Court.

Canadian bankruptcy discharge: Do you have too much debt?

I hope that none of us ever suffer from such a critical illness. However, it is good that Ms. Cooke had that insurance coverage. Do you have too much debt, or debt that you can’t repay because life got in your way? Illness and job loss are two prime factors in reducing someone’s income and increasing their expenses. It could force people to have to live off of credit cards until there is no credit room left, and no ability to ever repay the debt.

If you have too much debt, contact the Ira Smith Team. We have years of experience in helping those people and companies where life got in the way. Perhaps you need a debt settlement plan. Alternatively, if bankruptcy is the only real answer, we can help ease the stress and pain of bankruptcy for you.

Our approach for each file is to create an end result where Starting Over, Starting Now takes place. This starts the minute you are at our door. You’re simply one phone call away from taking the necessary steps to get back to leading a healthy, balanced hassle-free life. Call us today for your free consultation.canadian bankruptcy

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RECENT BANKRUPTCY CASES: US RETAILER MATTRESS FIRM HOPES FOR SOFT LANDING

recent bankruptcy casesRecent bankruptcy cases: Introduction

The assault on brick-and-mortar retailers in North America continues. One of the most recent bankruptcy cases out of the USA is that of Houston-based Mattress Firm Inc. (Mattress Firm). Mattress Firm is the biggest mattress seller in the USA, has declared Chapter 11 bankruptcy. The firm plans on closing to 700 stores.

Recent bankruptcy cases: Paid too much?

The South African company, Steinhoff International Holdings, purchased Mattress Firm for $2.4 billion in August 2016. Steinhoff’s deal of $64 a share was greater than double the firm’s closing share price of $29.74 at the time. Mattress Firm’s debt at the time raised the deal’s worth to about $3.8 billion. Just a several years ago the mattress sector was forecasted to boom. Some of the reasons for the growth forecast was the expected continued rise of the US economy, jobs and housing growth.

Recent bankruptcy cases: The Chapter 11 filing

Court documents show Mattress Firm has more than $1 billion in liabilities, owing to its largest vendor almost $65 million. The company is getting in bankruptcy with 3,300 locations. Mattress Firm has 9,600 permanent and 285 part-time workers. It had sales of $3.2 billion in the fiscal year finished Sept. 30 as well as being $3.2 billion in the red, according to its bankruptcy filing.

The former CEO was replaced last March 1. Mattress Firm has obtained $250 million in DIP funding to support the business while it reorganizes. The company also obtained funding for operations by way of $525 million senior secured debt to use after it comes out from Chapter 11. Mattress Firm is beginning on what is called a prepackaged restructuring plan. It wants to arise from the bankruptcy process with a strong balance sheet. The company is confident that its brand-new strategy, when carried out, will enable it to reclaim a large section of the US mattress market.

Recent bankruptcy cases: The retail assault continues

Mattress Firm has dealt with a lot of the same conditions, and some different from, various other big retailers. The high-profile bankruptcy of Toys “R” Us, as well as the death of Sears Canada, are other examples. Some of the issues Mattress Firm faced leading to its bankruptcy protection filing are::

  • Extra traditional retail stores that were necessary
  • Being strapped with way too much debt
  • Cheaper priced goods from China
  • New direct-to-consumer bed mattress companies Casper and Leesa.

With appropriate stock management, overstocking should not have been an issue in the mattress industry. By its nature, each store does not warehouse the range of products waiting to be sold. Central storage facilities warehouse and ship the mattresses. Using proper supply management, there is no overstocking.

The assault on the retail mattress industry is not new. When the Chinese identified years ago how to make mattresses in China, and deliver them to North America, pricing pressures began. The brand-new phenomenon which did take the retail mattress sector by surprise was the idea in the industry that everybody first wanted to test mattresses before buying. No one ever before conceived that people would buy a mattress online, sight unseen. In the United States, 50% of consumers consistently purchase on the internet. The percentage is undoubtedly greater within the Gen-X and Millennial age groups. With generous return policies, online mattress buying has so far worked.

Recent bankruptcy cases: Do you or your company have too much debt?

Are you unhappy about the direction your debts or your company’s debts are taking you? Is the online shopping craze driving your business into financial ruin? Do you or your company not have enough cash flow to make it through another season? Is the stress of too much debt affecting your health and life?

Call us now for a free consultation. The Ira Smith Team can help you sort through all the issues. We will create a plan to get you back on the road to financial health. Many times, we can avoid bankruptcy, using one of the various bankruptcy alternatives. Call us today so we can help you get your life back, Starting Over, Starting Now.

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FORM 31 PROOF OF CLAIM: HOW TO PROPERLY COMPLETE THE PROOF OF CLAIM

Form 31 proof of claim: Introduction

In last week’s vlog, I reviewed why it is important to complete a form 31 proof of claim truthfully, and the penalties for filing a false claim. For both personal and corporate insolvency files, creditors call asking how to complete the document. I discuss in this vlog why it needs to be completed properly. I also provide a link in this blog that you can click on to see how to properly complete the form step by step.

The reference to “form 31” is merely the number of the form given to the form 31 proof of claim form under the Canadian Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3) (“BIA”).

What is the form 31 proof of claim form?

Completing and returning form 31 is the second phase in the bankruptcy process. They are included with the notice of bankruptcy documents mailed out by the licensed insolvency trustee (formerly known as a bankruptcy trustee) (the “Trustee”) to formally notify the creditors of the bankruptcy.

When properly completed and filed by each creditor, they are what a Trustee uses to compare the debt as listed on the debtor’s bankruptcy sworn Statement of Affairs. The amount claimed by a creditor is normally different than the amount of the debt listed on the bankruptcy schedules. The reason for this is normally because the creditor’s records are accurate to the penny, while the bankrupt’s records are usually not up to date.

The process is the same whether you are filing a secured claim, an ordinary unsecured claim or a priority claim, which is also unsecured, under s.138 of the BIA. What is important is that you need to have a provable claim.

If the Trustee determines that you have either an unliquidated claim or a contingent claim, there will be additional steps you will need to take for the Trustee to be able to ascribe a value and for you to have a properly proved claim.

Form 31 proof of claim: Form 31

In every:

the Trustee will supply to all creditors form 31 document. If the debtor who intends to restructure first files a Notice of Intention To Make a Proposal, a claim form is not sent out at that stage. It will be sent with the actual restructuring proposal and other related documents.

The same document contains both where you can make your claim as well as complete the proxy form, if applicable. Creditors may experience difficulty completing the document. So, the Trustee provides instructions on how to complete the claim form and proxy. That is also why I have provided a step-by-step instruction sheet from the link below so you can follow exactly how to complete the form.

form 31 proof of claim
form 31 proof of claim

Form 31 proof of claim: Acceptability of proof of claim

It is important to properly complete the document. It must be completed fully and properly. The claim must include all necessary details called for under the BIA. Below is a link to an example on how to properly complete the form 31 proof of claim. A Trustee is required to review all proofs of claim received.

The purpose of this is to know what claims are acceptable to be admitted for voting at the First Meeting of Creditors. Also, all proofs received either before or after the creditors’ meeting must also be reviewed carefully to make sure that they are acceptable if there is a dividend to be paid on the claims in the insolvency proceeding.

The Chair of the creditors meeting has the power to admit or disallow claims for the purpose of voting at the meeting. The Trustee has the same power for the proofs of claim for dividend purposes. Most times the Trustee will also be the Chair at the meeting of creditors.

It is incumbent on the Trustee to communicate with creditors whose claims the Trustee believes to be deficient. The purpose is to obtain additional information to make a final determination. The Trustee has to decide whether to admit or disallow a specific claim.

As you can see, completing the document properly is essential.

Does a creditor have to file a claim?

Nobody will force a creditor to file a claim in a bankruptcy estate. A creditor’s claim becomes valid when the creditor files it and the Trustee accepts it. . When a creditor files a claim against a bankruptcy estate, the creditor is making a claim that the Trustee should record and count their claim so that the creditor will be entitled to receive their pro-rata share of any dividend payments that may be made.

The Trustee will issue the maximum payment each creditor is entitled to when the bankruptcy estate is liquidated. When a creditor files a claim, the creditor also becomes an interested party in the bankruptcy case. An interested party is a person who has a vested interest in the bankruptcy case. If the claim is filed before the First Meeting of Creditors in bankruptcy, then the creditor has the right to participate in and vote at the meeting.

Form 31 proof of claim: My example

CLICK HERE TO SEE AND DOWNLOAD PROPERLY COMPLETED

FORM 31 PROOF OF CLAIM

form 31 proof of claim
form 31 proof of claim

Can I file a proof of claim after the deadline?

There are really only two important deadlines when it comes to filing a claim. The first is before the First Meeting of Creditors. As mentioned above, if you wish to participate in that meeting, then you need to have filed a properly completed valid claim before the start of the meeting. However, if you don’t file it by then, although you won’t be able to vote at the meeting, you have not lost out on anything else.

Once all the realization of assets of the bankrupt has been completed, being both the current assets, fixed assets, and possibly even intangible assets, if the Trustee has sufficient funds to issue a dividend payment, then the Trustee has to review all the claims filed. The Trustee also has to compare the claims register containing all of the creditor claims filed against the names and amounts listed in the bankrupt’s sworn Statement of Affairs.

If any creditors have not yet filed, and there will be a payment made to the unsecured creditors, the Trustee has to send a specific notice pursuant to the requirements of the BIA to each such creditor. The notice in writing says that a dividend will be paid, and if you don’t file your claim by a specific date, then you will be barred from receiving any payment.

How do I object to a form 31 proof of claim?

First, you have to be a creditor with a proven claim accepted by the Trustee. The BIA states that any creditor can inspect the claims filed. So if you have personal knowledge that a party listed on the sworn Statement of Affairs is really not a creditor, then you would be assisting the Trustee by reviewing the claims filed and pointing out any claims you believe are invalid, and why. However, it is very unusual for a creditor to take the time to do so.

The next opportunity and really the only time it matters, for a creditor to object to a claim filed by a creditor is if a dividend distribution is going to be made and the Trustee sends out the Final Dividend Sheet. If you think there are errors, then you can object to the approval of the Trustee’s Final Statement of Receipts and Disbursements and the Dividend Sheet.

Reasons that you may feel one or more claims are incorrect could be:

  • You do not believe that someone that has filed as a secured creditor can provide adequate proof of security with their claim.
  • You feel that the compromise of claims being proposed is improper.
  • There may be details of payments received by a creditor are missing and therefore their claim is overvalued.
  • The priority of claims listed is improper.
  • The priority of payment as listed in the Trustee’s Final Statement is incorrect.
  • Some of the more complicated claims, such as the claim of lessor, a claim by wage earner, claim by farmer or another claim for employees have been incorrectly calculated by the Trustee.

If you have any concern that there is an error with the amounts being claimed, or if you believe that there are circumstances where one or more claims are not valid, you should immediately communicate this to the Trustee.

Keep in mind that once the Trustee issues the Final Statement with Dividend Sheet and has the intention of making a payment to all creditors with valid claims, you have to file your own objection within 30 days of the date on which the notice was issued.

Form 31 proof of claim: Do you need help?

Do you or your company have too much debt? Is a financial restructuring or debt settlement plan necessary but you just don’t know where to start? If so, then you need the help of a professional trustee.

The Ira Smith Team has years of experience of helping individuals and companies successfully complete their restructuring proposal debt settlement plans. Our approach for each file is to create an end result where Starting Over, Starting Now takes place. This starts the minute you are at our door.

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You’re simply one phone call away from taking the necessary steps to get back to leading a healthy, balanced hassle-free life, recover your money and move on to the next investment opportunity. Call us today for your free consultation.

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TRANSFER OF PROPERTY UNDER S.160 OF THE INCOME TAX ACT: PROPERTY ISN’T PROPERTY

transfer of property under s.160 of the income tax actTransfer of property under s.160 of the Income Tax Act: Introduction

Last August, Rudy Giuliani said, “truth isn’t truth”. Today I want to explore an important issue we come across many times when dealing with income tax debt driven insolvency files. That is the transfer of property under s.160 of the Income Tax Act (Canada). The decision of The Honourable Justice David E. Graham of the Federal Tax Court of Canada released July 6, 2018, gives rise to a variation of Rudy Giuliani’s comment to say – property isn’t property.

The case was an appeal by Aitchison Professional Corporation (“APC”) of an income tax assessment issued by the Canada Revenue Agency (“CRA”). The case is Aitchison Professional Corporation v. The Queen, 2018 DTC 1101 (Tax Court of Canada).

Transfer of property under s.160 of the Income Tax Act: The participants

APC is a law firm operating under the name Aitchison Law Office. The creation of APC happened in December 2003 by 3 people: James Aitchison (“James”) and his two daughters, Kelly Aitchison (“Kelly) and Laurie Aitchison (“Laurie”). All three are Ontario lawyers.

In 2012, the Minister of National Revenue assessed APC for nearly $2.1 million pursuant to s. 160 of the Income Tax Act. The assessment stated that James had actually moved property worth even more than $3 million to APC for little or no value.

There was no disagreement that, at the time of the claimed transfers, James owed practically $2.1 million to the CRA. James had not paid any income tax since 1992. His tax obligation, along with interest and penalty, remains outstanding.

The main concern, in this case, was whether James moved property to APC. If he did, it would have to be valued. CRA claimed the property James transferred to APC is his right to invoice for legal services.

As indicated above, CRA’s position was that the right to invoice for legal services was the property transferred. It is interesting to note that they did not claim that either the work-in-process, the accounts receivable, or both, derived from James’ work, was the property transferred. In my view, this was a fatal error in their case.

The Court considered subsection 248( 1) of the Income Tax Act and in particular, His Honour considered the definition of the word property under the Income Tax Act is “a right of any kind whatever”. In his decision, His Honour stated the distinction that “property” has a wide meaning, but not every little thing of value is property.

Transfer of property under s.160 of the Income Tax Act: The Judge’s words


The Judge found that:

  1. CRA had problems verbalizing specifically how James’ “right to invoice for legal services” is property.
  2. He thought CRA was attempting to fit a square peg into a round hole.
  3. CRA was attempting to take something that is clearly a service and trying to make it fit into the definition of property.
  4. CRA’s position is faulty. They argued that James carried out work for APC neither as an independent contractor nor as an employee. CRA did not provide any evidence as to what they believed the actual arrangement was.
  5. Notwithstanding it is prudent for a company to have an employment agreement with all of its employees, none of James, Kelly or Laurie had an employment agreement with APC. However, CRA accepts that Kelly and Laurie are employees of APC but do not recognize James the same way.
  6. James was either an employee of APC with no salary or, an unpaid volunteer. The Judge held that it was not necessary for him to determine which one it was.
  7. It is an employee’s right to be paid. If the evidence was that James was entitled to a salary but he waived it, then he would have found that the waived salary was property transferred to APC. However, this was not the case.
  8. CRA, to their peril, did not argue that James was a sole practitioner, transferring his work-in-process and/or accounts receivable to APC.

Transfer of property under s.160 of the Income Tax Act: Saulnier v. Royal Bank of Canada

The intersection of insolvency and the issue of a transfer of property under s. 160 of the Income Tax Act is an important one. Although it did not help them, CRA referred to the Supreme Court of Canada decision in Saulnier v. Royal Bank of Canada, [2008] 3 SCR 166, 2008 SCC 58 (CanLII). That decision was in a bankruptcy case, dealing with the transfer of fishing licenses.

In that case, the Receiver and Trustee applied to the Court for the authorization to sell its interest in the fishing licenses. Due to an opposition, the Trustee went to Court seeking approval of the sale. The trial judge decided that the fishing licenses was a property that could be sold. The Court of Appeal agreed with the trial judge.

The Supreme Court of Canada dismissed the appeal of the Court of Appeal’s decision, upholding the trial judge’s finding, that the fishing licenses was property under s. 160 of the Income Tax Act. The interesting thing about that case is that the fishing licenses were considered as property mainly because of the wide sweeping definition of property contained in another federal statute, the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3) (“BIA”).

In the APC case, the Judge did not find the Saulnier case persuasive. The reason was the matter before him did not involve the BIA. In this case, it was only the Income Tax Act. Rather, the Judge relied upon a different case decided in the Federal Court of Appeal, Manrell v. Canada, [2003] 3 FC 727, 2003 FCA 128 (CanLII).

As explained by the Federal Court of Appeal in Manrell:

“[25] It is implicit in this notion of “property” that “property” must have or entail some exclusive right to make a claim against someone else. A general right to do something that anyone can do, or a right that belongs to everyone, is not the “property” of anyone . . . . . .

[50] The phrase . . . “a right of any kind whatever”, like the word “property”, has a very broad meaning. But it is not a word of infinite meaning. It cannot include every conceivable right. It cannot be given a meaning that would extend the reach of the Income Tax Act beyond what Parliament has conceived”.

Transfer of property under s.160 of the Income Tax Act: The verdict and the Judge’s conflict

Based on the evidence, His Honour found that James didn’t transfer property to APC by working for APC for free. The Judge also awarded costs to APC.

However, the Judge gave his personal view of his decision in the judgment. He felt that this was a horrible outcome. Furthermore, he commented that James had not paid a cent of income tax since being discharged from his bankruptcy in 1992. The Honourable Justice David E. Graham did not feel this was a just result, based on his interpretation of the law.

So that is why I paraphrase Rudy Giuliani to say – property isn’t property!

Transfer of property under s.160 of the Income Tax Act: Is CRA pursuing you?

Is CRA pursuing you because of transferred property to you? If so, you need an income tax lawyer. However, if you have received legal advice that you don’t really have a case, or you can’t afford to fight it out in Court and the debt renders you insolvent, then you need the help of a professional trustee.

The Ira Smith Team has years of experience of negotiating with CRA on behalf of tax debtors. If you are an individual person and owe CRA and your other creditors, other than for any loans secured by your home, less than $250,000, you can enter into a consumer proposal debt settlement plan. If you owe more or are a corporation, we can still negotiate with CRA and restructure you with a restructuring proposal debt settlement plan.

Our approach for each file is to create an end result where Starting Over, Starting Now takes place. This starts the minute you are at our door. You’re simply one phone call away from taking the necessary steps to get back to leading a healthy, balanced hassle-free life, recover your money and move on to the next investment opportunity.

In conclusion, call us today for your free consultation.

Special thanks to Ian MacInnis of Fogler Rubinoff for bringing this decision to my attention and inspiring me to write this blog.

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PROOF OF CLAIM BANKRUPTCY CANADA: TRUTHFUL CLAIM COMPLETION REQUIRED

Proof of claim bankruptcy Canada: Introduction

On September 24, 2018, the US Department of Justice Trustee Program (USTP) that it reached a $5 million settlement with Citibank. As described below, it had to do with the improper preparation and filing of bankruptcy proofs of claim. The purpose of this blog is to explain the issues and discuss what it means when completing a proof of claim bankruptcy Canada.

Proof of claim bankruptcy Canada: The settlement requires Court approval

The USTP participated in a nationwide negotiation arrangement with Citibank N.A. (Citibank), Department Stores National Bank (DSNB) (jointly Citi), as well as FDS Bank. Citi will pay $5 million to remediate robo-signed evidence of proofs of claim submitted in more than 71,000 consumer bankruptcy files involving Macy’s charge card accounts.

Moreover, the suggested agreement has been submitted to the U.S. Bankruptcy Court for the Northern District of Georgia, where it is subject to court authorization. FDS Bank serviced the accounts and retained certain bankruptcy-related services to outside vendors.

Proof of claim bankruptcy Canada: The Robo-signing debacle

Between 2012 and 2015, tens of thousands of proofs of claim were filed in bankruptcy files throughout the USA for DSNB. These proofs of claim were incorrectly signed, under the penalty of perjury, by employees of an outside vendor who had not reviewed the respective file and proof of claim and/or lacked knowledge of the contents of the proof of claim.

In some cases, the electronic credentials of the vendor’s staff were used to file proofs of claim without being reviewed by that or any other person. These improper practices were identified when Citibank took over the servicing of the accounts in late 2015 from the third parties. Citi self-reported the errors to the USTP.

Proof of claim bankruptcy Canada: The USTP comments

“I am pleased that Citi has acted responsibly by self-reporting these deficient bankruptcy practices and agreeing to remediate affected borrowers to address the errors,” said USTP Director White. “I am also encouraged that Citi has instituted internal bankruptcy procedures to ensure that the vendor’s errors should not be repeated. When creditors fail to comply with the bankruptcy laws and rules, they must be held accountable. The U.S. Trustee Program remains diligent in its effort to ensure that creditors, as well as debtors who disregard the law, will be held accountable for their actions.”

Proof of claim bankruptcy Canada: How to complete form 31 proof of claim

In completing a proof of claim form, for either a personal bankruptcy or corporate bankruptcy in Canada, the person completing the form must state that:

“I have knowledge of all the circumstances connected with the claim referred to in this form.”

A fully completed proof of claim must include details on:

  1. who the creditor is;
  2. the amount of the claim;
  3. what type of claim it is; and
  4. all contact details.

A proof of claim needs sufficient documentation attached in order for the Trustee to verify the claim.

Proof of claim bankruptcy Canada: What will happen if a false or unsubstantiated claim is made

Section 201(1) of the Bankruptcy and Insolvency Act (Canada) (BIA) states:

“201 (1) Where a creditor, or a person claiming to be a creditor, in any proceedings under this Act, wilfully and with intent to defraud makes any false claim or any proof, declaration or statement of account that is untrue in any material particular, the creditor or person is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding five thousand dollars, or to imprisonment for a term not exceeding one year, or to both.”

The BIA provides for penalties in Canada also. A robo-signing exercise like in the Citi case, in my opinion, is an offence under this section of the BIA. Any false proof of claim will be disallowed, in whole or in part.

I am not aware of any court decisions in Canada on this section of the BIA. Perhaps Canadians as a whole are more truthful than those involved in the Citi matter!

Proof of claim bankruptcy Canada: Are claims being made against you or your company?

Are you or your company experiencing financial difficulties? If yes, call the Ira Smith Team. Our approach for each file is to create an end result where Starting Over, Starting Now takes place. This starts the minute you are in the door.

The earlier you contact us, the more options we will have to implement. Whether it is a corporate restructuring or personal debt settlement through a consumer proposal, the goal is to avoid bankruptcy. However, if bankruptcy turns out to be the best option, we can assist there too.

You’re simply one phone call away from taking the necessary steps to get back to leading a healthy, balanced hassle-free life, recover your money and move on to the next investment opportunity.

 

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MORTGAGES FOR SENIORS CANADA: APPARENTLY NOT A PROBLEM

mortgages for seniors canada

Mortgages for seniors Canada: Introduction

TransUnion Canada’s most recent TRANSUNION Q2 2018 INDUSTRY INSIGHTS REPORT found that borrowing for mortgages was reduced in Canada in 2018. A troubling statistic exists for mortgages for seniors Canada. In this Brandon’s Blog, I discuss this and certain other issues arising from the TransUnion Canada report.

Secured home loans for older folks Canada: Home mortgage borrowing decreases throughout Canada

Home mortgage lending has reduced throughout Canada in the first half of 2018. Generally, there was a 3.4% decline in the variety of brand-new home loans in Q1 2018 as compared to Q1 2017; this comes after an 8.8% year-over-year decrease in Q4 2017. This pattern seems to prove that the brand-new home loan guidelines might be affecting customers that are either not qualifying or are not able to obtain the level of home mortgage they want. It is unclear if this decrease in home mortgage demand means that there are fewer people looking for a home mortgage, or if there are more people sitting on the sidelines trying to figure out a way to qualify.

HELOCs for retirees Canada: Seniors bucking the trend

The exception to the decrease in home mortgage originations in Canada in 2018 is older generation Canadians. Canadians in the 73-93-year-old age group saw a substantial year-over-year boost (63%) in the number of home mortgages taken out. Baby Boomers in Canada, those in the 54-72-year-old age group saw an 18% increase. These statistics beg the question, why are Baby Boomers, and those in the Boomers’ parents’ age range, refinancing their mortgages or taking out new mortgages? Although not disclosed in the TransUnion Canada report, presumably a lot of the retirees are taking out reverse mortgages, as they too can’t qualify for a traditional mortgage on their retirement income.

Mortgages for seniors Canada: Seniors use of funds

The TransUnion report does not delve into the uses seniors are putting the new mortgage funds to. However, if I was to speculate, I would think that the funds were being used for:

Baby Boomers –

  1. Seniors debt consolidation
  2. Helping children pay for education.
  3. Giving or loaning their children sufficient funds for the house down payment so they could now qualify for a traditional home mortgage under the new stress test rules.

The 73-93-year-old age group –

  1. Helping children with paying off debts – Baby Boomer’s debt consolidation loans.
  2. .Their own debt consolidation.
  3. Gifts or loans to grandchildren – sufficient funds for the house down payment so they could now qualify for a traditional home mortgage under the new stress test rules.

Real estate loans for baby boomers Canada: Why I believe parents and grandparents are helping children buy their home

The TransUnion Canada report says that the greatest decreases in home mortgage applications were amongst the more youthful generations. There was a year-over-year decrease of greater than 22% amongst Gen Z as well as 19% amongst Millennials.

No doubt some of the decreases is a result of the younger generations’ changing lifestyle habits where homeownership may not be as important as it was to the generations before them. However, I would expect that Millennials as a group would by this point want home ownership, where Gen Z may not see it right now as being important.

Main mortgage changes by location

The biggest downturn in mortgage originations remained in Toronto, with a decrease of 17.6% in Q1 2018 from the previous year. Vancouver stayed reasonably level with an increase of only 0.8% over the previous year. The biggest increase in the home mortgage business was in Ottawa, with a boost of 8.4% over the previous year. Montreal had a 5.2% boost over the previous year.

Mortgages for seniors Canada: Risk distribution

Mortgage originations in the super prime risk tier increased 4.4% year over year in Q1 2018. All other risk tiers combined registered an 8% decrease in originations. TransUnion Canada reported that the decrease has been most significant in the below-prime risk buckets.

It is interesting that the higher risk subprime market mortgages have increased. No doubt private lenders, including the shadow lenders, dominate this market as the borrowers could not qualify for a home mortgage loan from a traditional bank or mortgage lender.

The decrease of new mortgages in the lower risk categories tells me that the new stress test qualifying rules combined with successive increases in mortgage rates have contributed negatively to those who perhaps as recently as last year could have qualified for a traditional mortgage. However, now they can’t be based on affordability.

Do you, your children or your grandchildren have too much debt?

Are your children or grandchildren coming to you for financial help for debt consolidation? Is going into debt the best option for you? Can you afford to carry your new debt in retirement? Is giving away your home equity through a reverse mortgage the right move? Will you need the money you are about to give away for your healthcare?

If debt consolidation is the reason why your children or grandchildren need your financial help, look at other options first. They need the help of a professional trustee. Call the Ira Smith Team. We will listen to your issues and provide you with our thoughts and recommendations for free. That’s right; a free initial consultation. So why not?

We will advise them whether or not we think they are a candidate for either a debt consolidation consumer proposal or bankruptcy. If we feel they can solve their financial problems without an insolvency process, we will tell them straight. Make sure that the money you give for debt consolidation will fix all of their problems. It is possible that with our help, you’ll need to provide just a fraction of what they are asking for.

The Ira Smith Team understands the stress they and you are under and the pain it is causing you and your loved ones. We can eliminate their pain. I guarantee that they and you will start feeling better right away after our free initial consultation. Taking action after that will put you on the right path, Starting Over Starting Now.what does a court appointed receiver do18

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WHAT DOES A COURT APPOINTED RECEIVER DO: REQUIRED CONDITIONS FOR RECEIVERSHIP REAL ESTATE SALE

Bankruptcy

What does a court appointed receiver do: Introduction

Earlier this week I wrote my blog COURT APPOINTED RECEIVER REAL ESTATE: ALL PURCHASE TERMS AREN’T EQUAL. In that blog, I described 5 common conditions that a buyer wants in a real estate agreement of purchase and sale. I also showed why a court appointed receiver cannot agree to those requested conditions. The purpose of today’s Brandon’s Blog is to answer the question what does a court appointed receiver do in setting the vendor’s conditions in a real estate sale.

What does a court appointed receiver do: The 5 most common vendor terms

In the earlier blog this week, I listed the 5 most common seller terms that the court appointed receiver cannot agree to. Here are the five most common terms that the court appointed receiver as seller requires.

  1. Capacity – The court appointed receiver requires the buyer to acknowledge that the vendor is selling solely in its court-appointed role.
  2. Title – Buyer agrees to accept title to the property as will be conveyed by the Court order conveying title which is called a Vesting Order. Also, the buyer must acknowledge that it is accepting title subject to any site plan agreements, restrictions, easements for the supply of utilities, services or otherwise. Also, the buyer will accept title subject to any rights of way, encroachments on or by the subject property onto adjoining properties, leases or licences. This is why it is important for the buyer’s lawyer to do a careful search of title and explain any and all issues to the buyer before the purchaser agrees to accept title.
  3. Inspections – A buyer from a court appointed receiver must be very careful in doing its due diligence. The court appointed receiver will allow for reasonable inspections. The buyer must acknowledge that he/she/it relies entirely upon its own inspection and investigation with respect to quantity, quality and value of the property. The buyer must also agree that it is purchasing and accepts the property on an “as is” basis, as of the date of acceptance and as of the closing date.
  4. Fixtures and chattels – Every buyer obviously wants to get the most possible out of the real estate purchase. It is normal for all buyers to want to confirm that they are receiving good title to all chattels and fixtures. The buyer is also looking for a warranty that they will all be in good working order on the date of closing. This is not possible in a court appointed receiver real estate sale. Rather, in a Court-appointed receivership, the receiver will insist on the condition that notwithstanding anything contained to the contrary in the agreement of purchase and sale, the Buyer acknowledges that the seller does not have title to the chattels or fixtures presently located on or used in connection with the property. The buyer and seller can agree that the chattels and fixtures set out in the schedule to the agreement remain at the property. However the buyer must also agree to take it on an “as is” basis. There is no warranty or representation and the seller won’t provide a bill of sale on closing for any chattels or fixtures. The court appointed receiver probably cannot verify that ownership of the fixtures and chattels are the property of the owner of the real estate. The receiver won’t rely on what is affixed to the premises to to prove or infer title.
  5. Court approval – A court appointed receiver must obtain court approval to the method of offering the property for sale (obtained before the sales process begins) and certainly for a specific sale. The court appointed receiver must seek that approval in order to have the sales process and sale sanctioned. The Court will issue an Approval and Vesting Order. This is the Court order allowing the transfer of title to the buyer. A court appointed receiver will put together its motion material and attend in Court for such approvals once it knows that it has a firm deal, all buyer conditions have been waived and the necessary deposit funds have been received. A Court will not approve a transaction that isn’t firm. The Court will question why the court appointed receiver is wasting resources in making the approval request at that time.

What does a court appointed receiver do: Is your mortgagor in trouble?

I hope this information will help you understand better the most common terms and conditions a court appointed receiver selling real estate requires. A court appointed receiver does this in setting the vendor’s conditions in a real estate sale.

Are you a mortgagor over industrial or commercial realty where the debtor remains in default? There may be reasons that you have to take into consideration for putting in a court appointed receiver.


If yes, call the Ira Smith Team. Our approach for each file is to create an end result where Starting Over, Starting Now takes place. This starts the minute you are in the door. You’re simply one phone call away from taking the necessary steps to get back to leading a healthy, balanced hassle-free life, recover your money and move on to the next investment opportunity.what does a court appointed receiver do

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COURT APPOINTED RECEIVER REAL ESTATE: ALL PURCHASE TERMS AREN’T EQUAL

court appointed receiver real estateCourt appointed receiver real estate: Introduction

Over the last 5 years, (and of course for many years before then), we have taken on many Court appointments for commercial real estate receivership files. In August 2017 we wrote BUYING REAL ESTATE FROM A RECEIVER: READ, REMEMBER AND FOLLOW THE CONTRACT LAW FINE PRINT. In that blog, we described a BC Court of Appeal decision to show how tricky both the sale and purchase of court appointed receiver real estate can be. For this Brandon’s Blog, I list certain purchaser terms normal in an arm’s length non-distress situation. I explain why they can’t always work when purchasing from a receiver.

Court appointed receiver real estate: 558 Dovercourt Road, Toronto

One of our current assignments is the sale of real property with a civic address of 558 Dovercourt Road, Toronto. This is a residential income property (with a commercial storage component). Given the potential for competing claims, the second mortgagee wanted to go the court appointed receiver route, rather than a traditional mortgagee power of sale. This is so the Court is available to sort out any issues of competing claims or other claims.

We have to date received two offers to purchase. Unfortunately, both offers weren’t acceptable. Our sign back of the first offer was not accepted by the potential purchaser. The second offer was not even worthy of a sign back.

It was not only an issue of price. The potential purchasers also included various terms that were unacceptable to any court appointed receiver. This is notwithstanding that they may be fine to a normal vendor.

Court appointed receiver real estate: Unacceptable terms

Below are some common terms that we see potential purchasers include in an offer. I give the reason(s) why a court appointed receiver cannot include them in an acceptable agreement of purchase and sale. Keep in mind that the court appointed receiver is not trying to be difficult or mean. Hopefully, these explanations will help.

  1. The seller – The seller is not just the court appointed receiver’s company name. Rather, the vendor is court appointed receiver’s company name, solely in its capacity as court appointed receiver of [legal name of property owner]. It is only the official court appointed receiver capacity selling the real estate. The court appointed receiver’s power to offer the property for sale and enter into an agreement as seller comes from the court appointment order. The Court also supervises the administration and sale.
  2. All equipment/appliances will be in good working order on closing – A court-appointed receiver cannot give such a warranty. A private receiver or a court-appointed receiver sells assets on an “as is where is” basis, with no warranties. It’s just the way it is.
  3. The court appointed receiver will obtain court approval for the sale before the purchaser has waived all of the purchaser’s conditions – A court appointed receiver can’t and won’t go to Court to obtain approval to a transaction that may not even exist later on because the purchaser won’t waive one or more conditions and the deal goes dead. The court appointed receiver won’t incur the cost of preparing its motion and going to Court before knowing there is a firm deal. This obviously includes the payment of the deposit funds.
  4. Seller will discharge work orders – A court appointed receiver will not do the repairs or upgrades to the property in order to discharge work orders. The court appointed receiver will, of course, give clear title to the property by discharging mortgages or liens. The Court approval Order, called a Vesting Order, does this. The purchaser has the time to have his/her/its lawyer inspect title. The deal ends if proper title can’t be given. If the purchaser does not want to inherit certain work orders, then that should be another condition.
  5. Seller will provide the buyer with keys that work to every exterior and interior door lock – A court appointed receiver will not agree to this. The court appointed receiver will certainly provide any keys in its possession.

These are the most common buyer conditions that a court-appointed receiver real estate sale won’t be able to handle. In my next blog, I will look at common conditions a court appointed receiver seller uses.

Court appointed receiver real estate: Is your mortgagor in trouble?

Are you a mortgagee over a commercial real estate property where the mortgagor is in default? Are there reasons why you need to consider applying to Court for a court appointed receiver + real estate sale?

If yes, contact the Ira Smith Team. Our philosophy for every person and company is to develop an outcome where Starting Over, Starting Now happens, beginning the minute you come in the door. You’re just one call away from taking the essential action steps to get back to leading a healthy and balanced stress-free life.

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