Trust Deed Equivalents in Australia, Canada and the U.S.

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1 Trust Deed Equivalents in Australia, Canada and the U.S. Australia A personal insolvency agreement (PIA) under Part X of the Bankruptcy Act 1966 is a way for a debtor to come to an agreement with their creditors to settle debts without becoming bankrupt, there are no income, asset or debt limits. A debtor must be insolvent to propose a PIA. A debtor must be present in Australia or otherwise have an Australian connection (e.g. ordinarily live in Australia or involved with a business operating there) for the proposal to be accepted. A PIA may involve: A lump sum payment to creditors via the trustee either from the debtor s own money or money from third parties An assignment of assets to the trustee to be sold and the net proceeds distributed to creditors, or the payment of the sale proceeds of assets to the trustee for distribution to the creditors Periodic payments to the trustee to be distributed to creditors The debtor appoints a trustee to take control of their property and put forward a proposal to creditors. Only a registered trustee, the Official Trustee or a suitably qualified solicitor can act as a trustee. The trustee examines the proposal, makes enquiries into the debtor s affairs and reports to creditors the amount they can expect from the proposal compared to the amount they could expect if the debtor became bankrupt. The trustee makes a recommendation whether it is in the creditors interest to accept the proposal as opposed to the debtor becoming bankrupt. A creditors meeting is held within 25 working days of the trustee s appointment (30 working days if appointed in December!) at a time and location convenient to creditors. Creditors can be represented by a proxy, or participate by telephone if facilities are available. The debtor must attend the meeting unless excused by the trustee. The creditors may ask the debtor questions before deciding how to vote. At the creditors meeting, creditors consider the proposal. Acceptance requires a 75% vote (of debt) in favour. If the proposal is accepted the creditors are bound by the terms of the agreement. Secured creditors rights in relation to dealing with their security are not affected by a PIA. A trustee (who may be different from the trustee but must be either a registered trustee or the Official Trustee) is appointed to administer the agreement. If the proposal is rejected creditors will either: vote in favour of the debtor becoming bankrupt (the debtor does not have to accept this), or

2 leave it up to the debtor to decide how to resolve their financial difficulties. If the proposal is rejected or lapses, the debtor cannot appoint another trustee for six months without leave of the court. A debtor can make a written request to their trustee to vary the terms of the agreement. The trustee sends a notice of the proposed variation to the creditors and, if none object in writing, the terms will be varied. If a creditor objects, a creditors meeting can be called to consider the proposed variation. Creditors, with the debtor s written consent, can vary the terms of an agreement by passing a special resolution. An agreement can be terminated by the occurrence of an event specified in the agreement as causing termination. An agreement can also be terminated by a resolution of the creditors where the trustee is satisfied that the debtor is not complying with their obligations. A debtor who appoints a controlling trustee commits an act of bankruptcy. A creditor can use this to apply to court to make the debtor bankrupt if the attempt to set up a PIA fails. The appointment of a trustee and the setting up of a PIA will be recorded on the National Personal Insolvency Index (NPII) and it is not removed. Once a debtor enters a PIA, the debtor is automatically disqualified from managing a company until the terms of the PIA have been completed. There is a fee payable to ITSA upon lodging a Controlling Trustee Authority form. A trustee will charge a fee for examining the proposal, investigating the debtor s affairs, preparing a report to creditors and holding the creditors meeting. The trustee of the PIA will also charge a fee for administering the PIA. Funds realised by a trustee in an administration are subject to a realisations charge which is paid by the trustee directly to the government. Any interest earned on funds realised by the trustee is payable to the government. Canada An individual with a total debt that does not exceed $ , not including debts secured on their principal residence, can enter a consumer proposal. Once a debtor has found a trustee in their local area willing to act to develop a consumer proposal, the trustee will develop the proposal and file it with the Office of the Superintendent of Bankruptcy. Once filed, the debtor stops making any payments directly to unsecured creditors, any salary garnishments will stop and lawsuits by creditors will be stopped. The trustee submits the proposal to creditors, including a report on the debtor s personal situation and the causes of their financial difficulties.

3 Creditors have 45 days to either accept or reject the proposal. If no objection is received within 45 days of the filing, it is deemed to have been accepted by the creditors. If no objection to the proposal is received within 15 days after the acceptance, it is deemed to have been approved by the Court. If 25% of creditors refuse the proposal within 45 days of the filing, a meeting of creditors will be held that the debtor must attend. At the meeting of creditors, the creditors vote and a simple majority, by monetary value, in favour of the proposal means all creditors are bound. If no objection to the proposal is received within 15 days after the acceptance at the meeting, it is deemed to have been approved by the Court. If the consumer proposal is accepted, then the debtor must pay either a lump sum or periodic payments to the trustee and adhere to any other conditions in the proposal. The debtor can retain other assets as long as they make payments to secured creditors. The debtor must attend two financial counselling sessions and the proposal will be on their credit record for the duration of the term plus, depending on the province, a few years thereafter. If the consumer proposal is not accepted, the debtor can make changes to the proposal and resubmit it for consideration, consider other options for solving their financial problems or declare bankruptcy. If the debtor meets the conditions in the proposal in full, they will be legally released from the debts included in the proposal. If they miss three months of payments without filing an amendment to the proposal, the proposal may be annulled or deemed annulled and creditors can once again take action to collect the money owed to them. However, a consumer proposal that has been deemed annulled may be revived under certain conditions. United States A chapter 13 bankruptcy enables individuals with regular income to develop a plan to repay all or part of their debts. Debtors propose a repayment plan to pay instalments to creditors over three to five years. If the debtor's current monthly income is less than the applicable state median, the plan will be for three years unless the court approves a longer period. If the debtor's current monthly income is greater than the applicable state median, the plan generally must be for five years. In no case may a plan provide for payments over a period longer than five years. Chapter 13 offers individuals an opportunity to save their homes from foreclosure. Individuals can stop foreclosure proceedings and cure delinquent mortgage payments. Nevertheless, they must still make all mortgage payments that come due during the chapter 13. Chapter 13 also allows individuals to reschedule other secured debts and extend them over the life of the chapter 13 plan. Doing this may lower the payments. Any individual is eligible for a chapter 13 as long as their unsecured debts are less than $336,900 and secured debts are less than $1,010,650.

4 No individual may be a debtor under chapter 13 unless he or she has, within 180 days before filing, received credit counselling from an approved credit counselling agency either in an individual or group briefing. A chapter 13 case begins by filing a petition with the bankruptcy court serving the area where the debtor has a domicile or residence. Unless the court orders otherwise, the debtor must also file with the court: (1) schedules of assets and liabilities; (2) A schedule of current income and expenditures; (3) A statement of financial affairs. The debtor must also file a certificate of credit counselling and a copy of any debt repayment plan developed through credit counselling; evidence of wages from employers, if any, received 60 days before filing; a statement of monthly net income and any anticipated increase in income or expenses after filing. A husband and wife may file a joint petition or individual petitions. The courts must charge a case filing fee and an administrative fee upon filing (about $275 in total). With the court's permission, however, they may be paid in up to 4 instalments within120 days of filing the petition. Failure to pay these fees may result in dismissal of the case. When an individual files a chapter 13 petition, a trustee is appointed to administer the case; often a standing trustee takes all chapter 13 cases in a geographic area. Between 21 and 50 days after the debtor files the chapter 13 petition, the trustee will hold a meeting of creditors. During this meeting, the debtor is under oath, and both the trustee and creditors may ask questions. The debtor must attend the meeting and answer questions regarding his or her financial affairs and the proposed terms of the plan. In a chapter 13 case, unsecured creditors must file their claims with the court within 90 days after the first date set for the meeting of creditors. Unless the court grants an extension, the debtor must file a repayment plan with the petition or within 14 days after the petition is filed for court approval and must provide for payments of fixed amounts to the trustee on a regular basis, typically biweekly or monthly. The trustee then distributes the funds to creditors according to the terms of the plan, which may offer creditors less than full payment on their claims. The chapter 13 need not pay unsecured claims in full as long it provides that the debtor will pay all projected "disposable income" over an "applicable commitment period," and as long as unsecured creditors receive at least as much under the plan as they would receive if the debtor's assets were liquidated under chapter 7. Within 30 days after filing the bankruptcy case, the debtor must start making plan payments to the trustee.

5 No later than 45 days after the meeting of creditors, the bankruptcy judge must hold a confirmation hearing and decide whether the plan is feasible and meets the standards for confirmation set out in the Bankruptcy Code. Creditors will receive 28 days' notice of the hearing and may object to confirmation. The most frequent objection is that payments offered under the plan are less than creditors would receive if the debtor's assets were liquidated or that the debtor's plan does not commit all of the debtor's projected disposable income for the period. If the court confirms the plan, the chapter 13 trustee will distribute funds received under the plan "as soon as is practicable. If the court declines to confirm the plan, the debtor may file a modified plan or may convert the case to a liquidation case under chapter 7. If the court declines to confirm the plan or the modified plan and instead dismisses the case, the court may authorize the trustee to keep some funds for costs, but the trustee must return all remaining funds to the debtor (other than funds already disbursed or due to creditors). Occasionally, a change in circumstances affects the debtor's ability to make plan payments. In such instances, the plan may be modified either before or after confirmation, including at the request of the trustee or an unsecured creditor. The provisions of a confirmed plan bind the debtor and creditors. The debtor must make regular payments to the trustee either directly or through payroll deduction. While confirmation of the plan entitles the debtor to retain property as long as payments are made, the debtor may not incur new debt without consulting the trustee. A chapter 13 debtor is entitled to a discharge upon completion of all payments under the chapter 13 plan so long as the debtor certifies a number of things relating to domestic support obligations, discharge in prior cases and completion of an approved financial management course. As a general rule, the discharge releases the debtor from all debts, subject to the usual exceptions. In some situations, the debtor may ask the court to grant a "hardship discharge. Generally, such a discharge is available only if the debtor's failure to complete plan payments is due to circumstances beyond the debtor's control and through no fault of the debtor, creditors have received at least as much as they would have received in a chapter 7 liquidation case and modification of the plan is not possible.

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