In Part 1 we discussed the factors to be considered in deciding whether to deal with a deceased person's insolvent estate under either the Wills, Estates and Succession Act ("WESA") or the Bankruptcy and Insolvency Act ("BIA"). In this concluding part, we will discuss the court proceedings in general terms under the WESA and the BIA.
At death, nearly everyone will have a few outstanding creditors, even if it is only for the last month's bills and outstanding taxes. The executor or court appointed administrator (the "Personal Representative") will generally pay the final bills in the course of the administration of the deceased's estate, assuming there are funds in the estate. If the estate is insolvent, because there are not enough assets to pay all the debts and liabilities of the deceased, the Personal Representative of the deceased, or family members who may be deciding whether to become a Personal Representative, will need to consider how they will deal with the insolvent estate.
A recent decision of the Supreme Court of BC took issue with a bankruptcy trustee's investigation of a proof of claim, but also serves as a reminder that creditors need to take the proof of claim process seriously, particularly where there is any complexity to their claim, or else they risk unneeded cost and inconvenience.
Loan agreements will often have fixed repayment terms. In some cases, it is in the lender's interest to delay the repayment of the loan, usually in order to take advantage of a high interest rate. In order to guarantee the payment of interest at the high rate for the whole of the projected term, the loan agreement may contain a prepayment provision. Under such provision, even though early payment may be allowed, the lender will be entitled to recover the amount of interest that would have otherwise been payable over the term of the loan.
One doesn't have to be the master mind of a fraud in order to face criminal charges and sanctions for it later. In the case of R. v Roberts, 2019 BCSC 338, Mr. Roberts was charged with fraud over $5,000 for participating in a fraud on Scotiabank, wherein Scotiabank lost approximately $6M. Mr. Roberts was the office manager of Aggressive Road Builders ("ARB") and he knowingly provided documents to Scotiabank that contained false information so that Scotiabank would approve a $7M operating line of credit for ARB that would pay out ARB's then operating line of credit with the Royal Bank.
The federal Wage Earner Protection Program Act (WEPPA) provides funds for employees who go unpaid as a result of their employer's bankruptcy. or receivership This program is administered with the help of the trustee in bankruptcy or receiver (as the case may be).
In a recent BC decision, Fitzgerald Living Trust v. Mountainstar Gold, Inc., a judgment against the corporate defendant resulted in jail time for the principal behind the defendant.
A recent decision of the Federal Court of Canada should stand as a reminder that a borrower's unpaid taxes can take priority over secured lenders.
Ponzi schemes are fraudulent investment schemes whereby individuals are enticed by a conman or fraudster to make investments in an operation promising an unreasonably high rate of return. Once the first few investments are made, subsequent investors are enticed to invest partly through reported gains and partly through the high payouts of earlier investors. Ultimately, the conman either spends or disappears with the remaining money, or the scheme collapses on itself as funds are exhausted by payouts to earlier investors.
The Companies Creditors Arrangement Act is something of a legal juggernaut, with the power to sweep all before it in the cause of restructuring insolvent companies and returning them to profitable operations.