IRRV Alert - week ending 3rd October 2014

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Scotland's New Bankruptcy Legislation

 

 

 

 

 

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Bankruptcy and Debt Advice (Scotland) Act 2014

The following is a short bullet point note on Scotland's new legislation.

(1) Policy aspiration of the AiB:

  • ensure those debtors who can pay their debts should pay;

  • creditors get the best return possible;

  • break the debt cycle through improved rehabilitation from debt problems

  • educating debtors to improve their financial awareness when dealing with financial matters.

(2) Key changes to take place:

  • individuals will no longer be able to bankrupt themselves without taking prior financial advice from approved money advisor thus ensuring best option is taken

  • financial education, 'the financial wealth service', compulsory for some debtors identified as valuable to recurring debts

  • to identify surplus income a 'common financial tool' will be a mandatory part of the advice process.  Therefore the same tool will be used by all money advisers to assess income, expenditure and identify surplus income available to contribute towards debts.

  • debtor will be required to pay the contribution determined by the common financial tool for a minimum of 48 months - this is 12 months longer than under current arrangements.  The idea is that:

         > such contributions are sustainable

         > increased payment time should increase creditor return.

  • a new 'debtor contribution order' to replace the IPO

         > debtors can apply for a six month payment break but will still have to make a

            minimum of 48 payments

  • delay in discharging debtor from bankruptcy if they do not sign a new 'statement of undertaking' or comply with its conditions, including payment of the contribution.  Therefore more co-operation from the debtor will be encouraged.

  • a new moratorium to be introduced across all statutory debt solutions.  Therefore debtors to be given a 6 week period of protection from creditor action.  The idea is to give the debtor some breathing space, allowing them to take debt advice.  During this period:

         > no arrestment

         > no money attachment

         > no interim attachment

         > no attachment of estate

Creditors will be aware by searching:

        >  AiB website

        >  Register of insolvencies

        >  DAS register

(3) Debtor discharge:

  • no automatic discharge except in minimum asset cases (MAP)

  • the trustee will apply for the debtor's discharge - if not, trustee must explain why not to the debtor

       > debtor has a right of appeal to sheriff

  • possibility to re-open bankruptcy if after discharge it is discovered debtor estate would have been vested, e.g. debtor subsequently inherits assets or assets are discovered.

(4) Court time:

  • to free up court time miscellaneous admin processes currently carried out by the court to pass to the AiB including:

       > application by a trustee for a direction

       > recall of sequestration where debts can be paid in full

       > appointment of replacement trustee

Questions?

If you have any questions or comments on the above then please do contact me using the details below.  As always a selection of articles relating to debt recovery and credit control can be found at www.debtscotland.com/news.cfm .

Best regards,

 

Stephen Cowan

Stephen Cowan
Managing Partner
Yuill + Kyle
Debt recovery + Credit control Lawyers, Scotland

scowan@yuill-kyle.co.uk

W: http://www.debtscotland.com
T: 0141 331 2332
Debt Recovery Ignited!

Yuill + Kyle is the trading name of Yuill + Kyle Limited, registration number: SC352604.

Registered Office: 79 West Regent Street, Glasgow, G2 2AR

Yuill & Kyle Limited are regulated by the Financial Conduct Authority


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