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babypud · Oct 11, 2006, 11:41 AM

My husband co signed a loan in May 2000, for a car. The principal borrower stopped paying and despite us trying to work with the bank to have them collect from the borrower they initiated a noticed of garnishment Feb 2004, which we have been paid in full. We had the principal borrower and his wife sign promissory notes in April 2004 stating the $11 000 would be paid at the end of the month. After months passed, we still hadn't been able to recover the money, we filed in small claims court (Ontario Canada) in September 2004, when we attempted to serve the court documents we had discovered they'd moved with no forwarding address and our time to serve ran out. We have since located them, can we refile in small claims or has our time expired?

CaptainForest · Oct 12, 2006, 09:43 PM

So they signed promissory notes in April 2004 to pay you by April 30, 2004?

So on May 1, 2004, you knew they had breached.

In September 2004, you filed in Small Claims court but were unable to serve them because you didn't know where they lived?

Why not? How did you now find them after 2 and a half years?

Take a read through the Limitations Act, http://www.canlii.org/on/laws/sta/20...whole.html#BK4

From reading it, I think you might want to go with section 7(2)

(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved. 2002, c. 24, Sched. B, s. 7 (2).

If you can prove to the Judge that you have been actively searching for these defendants since September 2004 and have been unable to find them, you probably can still be allowed to proceed.

For more specific advice, you should consult with an attorney.

But the question will be asked. From September 2004 until now, why could you NOT find them? Did you not know where they worked? Didn't know any of their friends, etc? How did you find them now?