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C.C.S.M. c. U20
THE UNCONSCIONABLE TRANSACTIONS RELIEF ACT
|Table of Contents||Bilingual (PDF)|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
1 In this Act,
"cost of the loan" means the whole cost to the debtor of money lent, and includes interest, discount, subscription, premium, dues, bonus, commission, brokerage fees and charges, but does not include actual lawful and necessary disbursements made to the district registrar of a land titles district, a sheriff, or the treasurer or clerk of a municipality; (« coût de l'emprunt »)
"court" means the Court of Queen's Bench; (« tribunal »)
"creditor" includes the person advancing money lent and the assignee of any claim arising or security given in respect of money lent; (« créancier »)
"debtor" means a person to whom, or on whose account, money lent is advanced and includes every surety and endorser or other person liable for the repayment of money lent or upon any agreement or collateral or other security given in respect thereof; (« débiteur »)
"money lent" includes money advanced on account of any person in any transaction that, whatever its form may be, is substantially one of money lending or securing the repayment of money so advanced, including a mortgage as defined in The Mortgage Act. (« somme prêtée »)
2 Where, in respect of money lent, the court finds that, having regard to the risk and to all the circumstances at the time the loan was made, the cost of the loan is excessive or that the transaction is harsh or unconscionable the court may,
(a) re-open the transaction and take an account between the creditor and the debtor;
(b) notwithstanding any statement or settlement of account or any agreement purporting to close previous dealings and create a new obligation, re-open any account already taken and relieve the debtor from payment of any sum in excess of the sum adjudged by the court to be fairly due in respect of the principal and the cost of the loan;
(c) order the creditor to repay any such excess if it has been paid or allowed on account by the debtor;
(d) set aside either wholly or in part, or revise or alter, any security given or agreement made in respect of the money lent, and, if the creditor has parted with the security, order him to indemnify the debtor.
3 The powers conferred by section 2 may be exercised,
(a) in an action or proceeding by a creditor for the recovery of money lent;
(b) in an action or proceeding by the debtor notwithstanding any provision or agreement to the contrary, and notwithstanding that the time for repayment of the loan or any instalment thereof has not arrived;
(c) in an action or proceeding in which the amount due or to become due in respect of money lent is in question.
4 In addition to any right that a debtor may have under this or any other Act or otherwise in respect of money lent, he may apply for relief under this Act to a judge of the court.
5(1) Nothing in this Act derogates from the existing powers or jurisdiction of any court.
5(2) Where any action or proceeding initiated under this Act by a debtor is, in the opinion of the court, frivolous or vexatious, the court shall award costs to the creditor.
6(1) Where any security for repayment of, or any right to recover, money lent under a loan in respect of which the debtor would be entitled to relief under this Act against the original creditor is assigned or transferred by that creditor either before, or within two years after, the money lent is disbursed, unless at the time of, or after the assignment or transfer the debtor gives an acknowledgment
(a) of the amount of money the debtor received from the money lent;
(b) that the debtor is aware of the cost of the loan; and
(c) that the debtor is aware of the manner and amounts in which, and the persons to whom, the proceeds of the loan were disbursed;
the assignee or transferee shall be conclusively deemed to have notice of every particular of, and all circumstances surrounding, the loan; and the matters set out in the acknowledgment shall be presumed to be true.
6(2) An acknowledgment to which reference is made in subsection (1) has no effect under this Act unless it is made before a solicitor authorized to practice in Manitoba who certifies that he has explained to the debtor taking the acknowledgment the meaning, purpose, and effect thereof, and it is made at least 48 hours after the money lent has been wholly disbursed.
6(3) This section does not apply to an assignee or transferee under an assignment or transfer of any security for repayment of, or any right to recover money lent, that was completed before this section comes into force.