PERSONAL INSOLVENCY PRACTITIONER

Transcription

1 PERSONAL INSOLVENCY PRACTITIONER EXAMINATION - AUGUST 2013 INSTRUCTIONS TO THE CANDIDATE: SECTION A: Answer Question 1, and SECTION B: Answer any 2 from Questions 2, 3 and 4. Time Allowed 2 hours plus 15 minutes to read the paper. Examination Format This is an open book examination. Hard copy reference material may be consulted during this examination. Reading Time During the reading time you may write notes on the examination paper but you may not commence writing in your answer booklet. Marks Marks for each question are shown. A mark of 50 or more is required to achieve a pass in this paper. Answers Start your answer to each question on a new page. You are reminded that candidates are expected to pay particular attention to their communication skills. Care must be taken regarding the format and literacy of the solutions. The marking system will take into account the content of the candidates answers and the extent to which the answers are supported with relevant legislation, case law or examples where appropriate. Answer Booklets List on the cover of each answer booklet, in the space provided the number of each question attempted. Additional instructions are shown on the front cover of each answer booklet. CPA Ireland, 17 Harcourt Street, Dublin 2.

2 CPA IRELAND, ACCA, CIMA PERSONAL INSOLVENCY PRACTITIONER EXAMINATION - AUGUST 2013 Time Allowed: 2 hours plus 15 minutes to read the paper. SECTION A - Compulsory Question Cite any relevant authorities and/or statutory provisions to support your answers 1. Jackson and Kyra married in 1995, and purchased their first home. In the course of their marriage they had four children (now aged 16, 14, 10 and 3 respectively) and consequently in 2006 they decided to buy a larger family home to accommodate their growing family. They had almost no equity in their first family home as they had remortgaged it previously to finance the purchase of motor vehicles and a mobile home for family vacations. On the sale of their first home they only made a profit of 10,000 and consequently borrowed 25,000 from their credit union, to finance the deposit to purchase the new larger family home. The total cost of the new property was 280,000 and the couple took a mortgage of 250,000 and used the additional 5,000 to decorate the property. In 2010 Jackson was made redundant from his job as a warehouse manager. At the point of redundancy Jackson was earning 55,000 per annum, plus overtime. Following the redundancy Jackson was unemployed for 8 months. He re-commenced employment in 2011 as a stock control manager with a manufacturing company, at an annual salary of 37,000 (a reduction of almost 33% on his previous earnings). Since the redundancy Jackson and Kyra have found it difficult to manage their debt, and the monies Jackson received upon redundancy were used to finance the repayment of the mortgage during this period of unemployment. These funds were depleted in early 2012, and Jackson and Kyra contacted their mortgage provider to negotiate the restructuring of this debt. Although they are now paying interest only on the mortgage of 850 per month the couple are still struggling to make this payment and consequently have not made any mortgage repayments in the past three months. In addition to the mortgage and credit union loan Jackson and Kyra have combined credit card debt of 43,000. They also have a 2,000 overdraft and store cards with debts of 18,000. The balance due on foot of mortgage is 240,000 and the balance on the credit union loan is 17,000. They also have not paid the household charge of 100 for 2012 or the local property tax for 2013 of 112. Kyra is employed in the retail sector on a part-time basis and her annual income is 23,800.The couple s combined take home pay is 4,014 per calendar month. From this they pay 200 per month in respect of childcare for their youngest child. Their oldest child has been diagnosed with asthma and the cost of his monthly medication is 144 (the maximum payable under the drug payment scheme). In relation to their assets, Jackson and Kyra have two cars, one a 2002 Ford Mondeo and the other a 2004 Ford Focus, with a combined worth of 5,500. Their house has been valued at 150,000 and their mobile home is now estimated to be worth 13,000. The couple s personal savings are 1,000 approximately, and all four of their children have credit union savings accounts, with a combined balance of 13,600. In light of these circumstances Jackson and Kyra are now considering entering into a Personal Insolvency Arrangement (PIA). REQUIREMENT: (a) (b) (c) Examine the various eligibility requirements in order to enter into a Personal Insolvency Arrangement (PIA). (9 marks) Assess whether Jackson and Kyra s expenses would be classed as reasonable for the purpose of obtaining a PIA and advise them as to any financial measures that they may be required to undertake regarding their assets if they enter into a PIA. (6 marks) In light of your advice in Part B, determine the actual financial position of Jackson and Kyra and their creditors assuming successful completion of the PIA. Note: The mortgage provider has agreed a monthly repayment of 750 per month for the duration of the agreement. (14 marks) Page 1

3 (d) Examine the effect of a Protective Certificate in the context of a PIA. (13 marks) (e) Assess the role of a Personal Insolvency Practitioner (PIP) following the issuing of a Protective Certificate. (8 marks) [Total: 50 Marks] SECTION B Answer ANY TWO of the THREE questions in this Section Cite any relevant authorities and/or statutory provisions to support your answers 2. (a) (b) Critically appraise the obligations imposed upon a Personal Insolvency Practitioner (PIP) if he wishes to voluntarily terminate his authorisation to practice. (18 marks) Evaluate the procedure that should be adopted by a Personal Insolvency Practitioner (PIP) upon: (i) Approval of the proposal for a Debt Settlement Arrangement, and (4 marks) (ii) Successful completion of a Debt Settlement Arrangement (3 marks). (7 marks) [Total: 25 Marks] 3. Critically evaluate the process that will be employed by ISI in the event of a complaint being raised against a Personal Insolvency Practitioner (PIP) (14 marks), commenting specifically on the rights of the PIP (6 marks), and the various sanctions that can be imposed (5 marks). [Total: 25 Marks] 4. Critically assess the conditions/obligations imposed upon a Personal Insolvency Practitioner by the Insolvency Service of Ireland as part of their authorisation to act in this capacity (10 marks), with particular emphasis on their obligations in relation to safeguarding of Debt Settlement Agreement and Personal Insolvency Agreement client funds (15 marks). [Total: 25 Marks] END OF PAPER Page 2

4 SUGGESTED SOLUTIONS CPA IRELAND, ACCA, CIMA PERSONAL INSOLVENCY PRACTITIONER EXAMINATION - AUGUST 2013 SOLUTION 1 (a) Eligibility Requirements to enter into a Personal Insolvency Arrangement (Section 90 and 91) Eligibility requirements can be summarised as follows: (1) A debtor may only enter into a PIA once in their lifetime if they have been the subject of a previous PIA, they are classified as ineligible. (2) The debtor must be insolvent and unable to pay his debts as they fall due. (3) At least one of the debtors debts must be secured over Irish property or assets, and must be less than 3 million. (4) The debtor must be domiciled in the State (or have been domiciled within one year prior to the application for a protective certificate). (5) The debtor must have completed a Prescribed Financial Statement and a statutory declaration confirming the accuracy of this statement in relation to the value of assets, liabilities, income and expenditure. (6) Where the debtor s secured debt includes a mortgage on his principal private residence, the debtor must have complied with a process approved by the Central Bank in relation to mortgage arrears for a period of at least six months. (7) The debtor cannot be an un-discharged bankrupt. (8) The debtor cannot be a discharged bankrupt, subject to a bankruptcy payment order. (9) The debtor cannot be the subject of a Debt Relief Notice. (10) The debtor cannot be the subject of a Debt Settlement Arrangement. (11) The debtor cannot have been the holder of a Protective Certificate for the period of 12 months prior to the application for the PIA. (12) The debtor cannot be or have been the subject of a Debt Relief Notice during the period of 3 years prior to their application for the PIA. (13) The debtor cannot be or have been the subject of a Debt Settlement Agreement during the period of 5 years prior to their application for the PIA. (14) The debtor cannot have been discharged from a Bankruptcy Order for less than 5 years prior to the application for the PIA. (15) At least 25% of the debtor s qualifying debt cannot have been accrued in the 6 month period preceding their application for a PIA. (any 9 x 1 = 0-9 marks) (b) Reasonableness of Expenses In addition to their accommodation and cost of living expenses, Jackson and Kyra have two main expenses, namely their child care cost of 200 per month, and their monthly medication cost of 144, in respect of their oldest child s asthma. (1) In relation to the 200 child care cost, this does not appear excessive, although the PIP can only determine this by reviewing the hours/type of child care required and the typical cost of such care in the debtor s locality. In addition, the PIP should determine whether the child would be eligible for the free year of childcare and early education for pre-school children provided under the Early Childhood Care and Education Scheme (ECCE). (0-1.5 marks) (2) In relation to medical expenses, as these relate to an existing medical cost and are covered under the Drug Payment Scheme they are likely to be classed as reasonable although the PIP should review whether any social welfare benefits could be claimed by Jackson and Kyra on behalf of his eldest child arising from his medical condition and on-going medical costs such as a Medical Card or a Medicine Card etc... (0-1.5 marks) Page 3

5 In relation to their assets: (1) In addition to their home they have two cars, with a combined value of 5,500. The PIP can review the necessity for both cars, and determine whether there are cheaper public transport options that Jackson and Kyra can avail of but with four children it is unlikely that they will have to sell these assets. (0-1 mark) (2) The children s savings are not relevant as they are not the assets of the parents. (0-0.5 marks) (3) The PIP should inform them that their own 1,000 savings must be used to reduce their debt and that they must sell their mobile home (value estimated at 13,000) as this would be classified as a luxury item. (0-1.5 marks) (c) Jackson and Kyra s financial position on successful completion of the PIA Assets Monthly Income Savings 1,000 Monthly Net Income 4,014 Principal Residence 150,000 Car 5,500 Mobile home 13,000 Total 169,500 Total 4,014 Unsecured Debt* Monthly Expenses Credit Cards 43,000 Total Set Costs 2,344.75** Store Cards 18,000 Agreed Mortgage 750 Credit Union Loan 17,000 Medicine Cost 144 Overdraft 2,000 Child Care Cost ,000 Secured Debt Mortgage 240,000 Total 320,000 Total Living Expenses 3, Total Disposable Income available *The debts due in respect of the household charge for 2012 and the property tax for 2103 are excludable debts and can only be included where the creditor consents **Table 6, Two Adult Household, one or more children, vehicle Couple Pre-school child Primary child x Secondary children 2 x = Third child allowance 9.83 Fourth child allowance Total 2, (0-7 marks) On the basis that the ratio of secured debt to unsecured debt is 75:25 ( 240k: 80k) funds should be distributed as follows: Total Unsecured Debt 80,000 Less Savings (25% of 1,000) ,750 Less Profit from Sale of Mobile Home (25% of 13,000) 3,250 76,500 Less fees of PIP (25% of 4,000) 1,000* 75,500 Less Disposable Income x 72 months (6 year arrangement) x 72 = 41,418 34,082 * Or any other reasonable amount Therefore, 44,918 was paid on foot of unsecured debt, 1,000 was paid to the PIP and the balance of 34,082 will be written off on completion of the agreement this means that the unsecured debtors received 56.15% of the total amount due (assuming no change in circumstances). (0-4 marks) Page 4

6 Total Secured Debt 240,000 Less Savings (75% of 1,000) ,250 Less Profit from Sale of Mobile Home (75% of 13,000) 9, ,500 Less fees of PIP (75% of 4,000) 3,000* 226,500 Less Agreed Repayments x 72 months (6 year arrangement) 750 x 72 = 54, ,500 * Or any other reasonable amount Therefore on completion of the PIA Jackson and Kyra will owe the Mortgage Provider 172,500 plus interest (as agreed) (assuming no change in circumstances). (0-3 marks) (d) Effect of a Protective Certificate (Section 96) It prohibits the initiation or continuation of certain enforcement proceedings or other specified actions while the protective certificate is in force. In effect this means that: (1) The debtor is immune from legal action in respect of the debts included in the agreement for the entire duration of the Arrangement. This includes the initiation or continuation of legal proceedings, the execution of judgments or orders, the enforcement of security, attempts to recover goods (even those held under retention of title clauses), contacting the debtor regarding payments, or any attempts to terminate credit agreements or accelerate payments on foot of existing agreement. (2) Its existence precludes an application for bankruptcy and prevents any applications already made from being processed. (3) No other legal proceedings can be commenced or continued in connection with the debtor or their property without prior approval from the court. (4) The court may also suspend any such proceedings for an appropriate period of time in order to assess the outcome of attempts to reach a Personal Insolvency Arrangement. (0-8 marks) However, the existence of a Protective Certificate does not preclude a creditor from taking legal action against another person who has guaranteed the debts of the debtor to which the Protective Certificate relates. This right is subject to the proviso that the guarantor cannot be in possession of a Protective Certificate. (0-2.5 marks) Furthermore, where debts are incurred jointly, a creditor is not precluded from taking legal action against any other person (not party to the Protective Certificate) in relation to the recovery of the debt. This right is subject to the proviso that the joint debtor cannot be in possession of a Protective Certificate. (0-2.5 marks) (e) Role of a PIP following the issuing of a Protective Certificate (Section 98) (1) The practitioner is required to notify (in writing) the creditors concerned that he has been appointed by the debtor for the purposes of making a proposal for a PIA; (2) The notification should also encompass the debtors Prescribed Financial Statement; (3) He is then required to invite the creditors to make submissions regarding the debts concerned and how they might be dealt with as part of a PIA (if necessary, he can request that the creditor provides proof of the debt); (4) He is required to consider all submission made by creditors; and (5) In light of these submissions and all other relevant matters the practitioner must then make a proposal for a PIA in respect of the debts concerned. (0-8 marks) Page 5

7 SOLUTION 2 (a) Voluntary Termination by a PIP of their Authorisation to Practice In order to terminate an authorisation to act the Personal Insolvency Practitioner (PIP) must provide the Insolvency Service of Ireland (ISI) with written notification of his intention to cease practice. This notification must be given at least six weeks prior of the intended cessation date. (0-2 marks) This notification must be signed and dated by the PIP and contain the following information: (1) The name and contact details of the PIP; (2) Written confirmation (if so obtained), addressed to the outgoing PIP and the ISI from the incoming PIP, that he is willing to act as a PIP in respect of the relevant potential or outstanding Debt Settlement Arrangements (DSA) and/or Personal Insolvency Arrangements (PIA) for which the outgoing PIP was appointed and the incoming PIP has agreed to be appointed; (3) Original written consents (if so obtained), signed by the relevant debtor, to the appointment of the incoming PIP in respect of each relevant potential or outstanding DSA or PIA; (4) Confirmation that each DSA account and/or PIA account operated by the outgoing PIP will be closed and all funds will be transferred to corresponding DSA accounts and/or PIA accounts operated by the relevant incoming PIP or that alternative arrangements will be made for control of the operation of these accounts to pass from the outgoing PIP to the relevant incoming PIP; (5) Written confirmation from the outgoing PIP addressed to the ISI and any incoming PIP that copies of all relevant records relating to the potential or outstanding relevant insolvency arrangements for which the outgoing PIP is appointed will be transferred to the relevant incoming PIP; (6) Written confirmation from the outgoing PIP to the ISI and any incoming PIP, that the outgoing PIP will cooperate with and assist the ISI and the relevant incoming PIP with any query the ISI or the relevant incoming PIP may have with respect to any relevant matter; (7) A copy of the final reconciliation of the DSA accounts and PIA accounts of the outgoing PIP; (8) The most recent financial statements of the outgoing PIP and the audit report thereon; and (9) A statement from the outgoing PIP detailing the reasons for his request to terminate his authorisation and the effective cessation date. (9 x 1.5 = marks) An outgoing PIP is also obliged to co-operate with and assist the ISI and any incoming PIP in relation to the termination of his or her practice and its continuance by the relevant incoming PIP. (0-1 mark) This obligation continues following the cessation of their authorisation to practice. The PIPs authorisation to carry on practice will not terminate until the effective cessation date, at which point the ISI will make the appropriate entries to their Register of Insolvency Practitioners, to reflect this termination. (0-1.5 marks) (b) (i) Procedure upon approval of the proposal for a Debt Settlement Arrangement (Section 75) (1) The practitioner is required to notify each creditor and the Insolvency Service (as soon as possible after the creditors meeting) that the DSA has been approved and provide them with a copy of a certificate with the result of the creditors vote and a copy of the Debt Settlement Arrangement. (2) The practitioner must also notify each creditor that he may make an objection to the coming into effect of the DSA by lodging a notice of objection with the Court within 14 days. (0-4 marks) (ii) Role of the PIP on completion of the DSA (Section 86) On completion of the Arrangement, the PIP must notify (1) the debtor, (2) the creditors and the (3) Insolvency Service. The notification to the debtor must specify that they are discharged from their unsecured debts covered under the terms of the Arrangement. (0-3 marks) Page 6

8 SOLUTION 3 Obligations on the ISI: In accordance with Part V, Chapter 4 of the Act where a complaint is raised the following obligations are imposed upon the ISI: (1) Appoint an inspector to investigate this complaint; (2) Following consultation with the parties involved the inspector must determine whether the complaint is made in good faith, is neither frivolous nor vexatious, and has substance and foundation; (3) The inspector must also determine whether it is possible to resolve the complaint by means of mediation or alternative informal mechanisms; (4) Depending on the nature of the complaint the ISI has the right to apply to the High Court for the immediate suspension of the PIP s authorisation to practice (this application can be made ex-parte in exceptional circumstances); (5) On completion of the investigation the inspector must submit their investigation report to the Complaints Committee of the ISI (this is a Committee established with Ministerial approval, comprising at least three people, of which at least one must be a qualified legal practitioner), the complainant and the PIP; (6) The Complaints Committee will then invite the Insolvency Service, the complainant and the PIP to make submissions on the report and if necessary an oral hearing can be conducted; and (7) Following this the Complaints Committee will make a determination and if the complaint is upheld they can impose an appropriate sanction a minor sanction can be imposed on their own volition, a major sanction can be imposed by the High Court. (0-14 marks) The rights of the PIP (Section 178) in this process are: In general the PIP has the right to participate in the investigation and has the right to be treated fairly (in accordance with the constitution, natural justice and fair procedures) in relation to the investigation process this includes the right to be notified on receipt of a complaint, the right of access to all documentation and evidentiary matters in relation to the complaint, and the right to respond to the complaint and challenge any evidence in support of the complaint. Furthermore, they have the right to the imposition of a penalty proportionate to the gravity of the wrongdoing, if the complaint is upheld. They also have the right to appeal any outcome to the High Court. (0-6 marks) The sanctions that can be imposed (Section 159) are as follows: Minor sanctions include: (1) Advice; (2) A caution; (3) A warning; or (4) A reprimand. (0-2 marks) Major sanctions include: (1) Revocation of authorisation to practice (in perpetuity, for a defined period of time or subject to specified conditions); (2) Suspension of authorisation to practice; (3) The payment of a sum not exceeding 30,000, to the Insolvency Service, in connection with the costs of the investigation, or (4) Any combination of the aforementioned sanctions (0-3 marks) Page 7

9 SOLUTION 4 The following is an overview of the obligations imposed upon a PIP: (1) Annual renewal of authorisation to act as a PIP, subject to qualification and payment of the prescribed fee; (2) The continued maintenance of professional indemnity insurance in relation to the practice, of not less than 1 million for each claim, and a minimum of 1.5 m in aggregate; (3) To ensure that all advertising and marketing communications relating to their practice are (a) legal honest and truthful, (b) are prepared with a sense of responsibility to debtors, creditors and society in general, and (c) in conformity with the principles of fair competition; (4) To have sufficient disaster-recovery processes in place to ensure documents are not destroyed in a fire or flood; (5) Where a practitioner proposes to terminate his practice as a PIP he must send a notice in writing to the Insolvency Service requesting termination of his authorisation and obtain their prior written approval before terminating such practice; (6) To comply with the regulations and standards established by the Insolvency Service regarding (a) fitness and probity, (b) independence, (c) competence and capability, (d) honesty, ethics and integrity, (e) financial soundness, (g) the practitioners relationship with the insolvency service, (h) organisation and management, (i) outsourcing, and (j) complaints handling. (any 5 x 2 = 0-10 marks) (7) In relation to the safeguarding of funds, to establish separate bank accounts for every client who undertakes a PIA or DSA and in relation to these accounts: A. To put in place and maintain on a constant basis robust controls and arrangements to safeguard funds received from or on behalf of debtors and/or creditors or held to the credit of debtors and/or creditors and to prevent the use of these funds for the benefit of the personal insolvency practitioner or any person other than the creditor or debtor entitled thereto; B. To lodge these funds promptly; C. To disburse these funds in accordance with the terms of the relevant debt settlement agreement; D. To designate these accounts as either Personal Insolvency Agreement Accounts or Debt Settlement Agreement Account; E. To only allow authorised debits and credits to be made through a designated DSA Account or PIA Account; F. To ensure that these accounts are never overdrawn; G. To ensure that funds in these accounts are insulated against and not subject to the claims of creditors of the personal insolvency practitioner; H. To maintain records and accounts in such a manner as to enable the practitioner at any time and without delay to distinguish funds held for one debtor or creditor from funds held for any other debtor or creditor and from the funds of the personal insolvency practitioner or any other person; I. To ensure that all accounts are accurate, complete and independent from those of other practices or businesses in which the personal insolvency practitioner is engaged; J. To conduct, on a regular basis, reconciliations between the practitioners internal accounts and records and those of the bank with whom the accounts are held; K. To notify the Insolvency Service within one business day, in writing, of differences identified during the reconciliation process, that are deemed material or recurrent in nature; L. To ensure that the relevant bank is notified in writing on the establishment of each DSA account or PIA account that funds credited to the account do not form assets of the personal insolvency practitioner for so long as the DSA account or PIA account remains open, and to ensure that the designation on all such accounts in the personal insolvency practitioner s records and accounts sufficiently distinguishes the funds Page 8

10 held in those accounts from funds belonging to the personal insolvency practitioner or other persons other than the relevant debtor; M. To rectify from their own resources any shortfall or potential shortfall where there has been an error in or unauthorised or improper dealing with or from the DSA account or PIA account by or on behalf of the personal insolvency practitioner; N. To notify the the Insolvency Service immediately, in writing, where the practitioner has been unable or has failed to perform a reconciliation with the necessary frequency, and to provide an explanation for the inability or failure to conduct the reconciliation. (any 10 x 1.5 = 0-15 marks) Page 9