RESPONSE TO LRC PERSONAL DEBT MANAGEMENT AND DEBT ENFORCEMENT REPORT. Chapter 1: Personal Insolvency Law: Debt Settlement Arrangements

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1 Chapter 1: Personal Insolvency Law: Debt Settlement Arrangements Reform of the Bankruptcy Act The Report recommends that a thorough review of the Bankruptcy Act 1988 should be undertaken. Comment: It is a matter of concern that the new Debt Settlement Arrangements recommended by the Report will be limited in their effect if the threat of bankruptcy remains for debtors attempting to enter into one of the debt settlement arrangements. Creditors in many cases may continue to use the threat of a Bankruptcy Petition as a method of securing payment rather than committing to a debt settlement arrangement with an arranging debtor. It may be that the Debt Settlement Arrangements as proposed would receive more support from creditors if the Bankruptcy alternative had less severe and long- term effects. Debt Settlement Arrangement available for intermediate cases The Report provides that the Debt Settlement Arrangement procedure was designed for intermediate cases which do not justify close supervision (of the Court and Official Assignee) and complex procedural safeguards of bankruptcy proceedings. Comment: Further consideration should be given to the potentially limiting effect of this provision prior to setting any maximum levels outside of which the Debt Settlement Arrangement would not be available. This is the case in particular having regard to the very significant levels of debt accumulated by many debtors as a result of even limited exposure to investments in the property market over recent years. Payment of the Personal Insolvency Trustee The Report proposes that: (i) fees charged by the Personal Insolvency Trustee would be subject to a general statutory framework; (ii) that the Debt Settlement Office would specify the range of fees to be charged by Personal Insolvency Trustee panel members to debtors; and (iii) that the fees would be paid by creditors, as they would come from deductions from the regular repayments being made by the Personal Insolvency Trustee to creditors on behalf of the debtor. Comment: A concern arising out of such a proposal is the potential exposure of the Personal Insolvency Trustee in the event that the debtor ceases to make the agreed payments to creditors and the scheme fails. Statutory Declaration of Personal Insolvency Trustee In assisting the debtor to prepare a statement of affairs for its creditors, the Report provides that the Personal Insolvency Trustee should also make a statement to the effect that he has reasonable grounds to believe that the information contained in the debtor s statement of affairs is complete and accurate. Comment: This appears to be a step too far having regard to the fact that it is likely that the Personal Insolvency Trustee will have had no involvement with the debtor prior to being 1

2 instructed in respect of the proposed settlement arrangement. It is difficult to see what reasonable grounds would be sufficient to enable the Personal Insolvency Trustee to make such a statement. The report suggests at paragraph 1.64 that this statement would be in the form of a Statutory Declaration. Tender Panel System At paragraph 1.67 the Report suggests that eligibility for the position of Personal Insolvency Trustee might be limited to members of a panel of practitioners and that practitioners satisfying certain licensing conditions could apply to become members of the panel through a tendering process. Comment: The tendering system if applied, should be considered in detail. Minimum experience or practice turnover requirements should not directly or indirectly restrict members of the panel to members of top-tier legal firms only, which of their nature are centred in Dublin. It is important that panel members would be available throughout the country. In addition, it provides that the panel should have a specified time frame of 3 years and that the panel would then be reviewed in the same publicly-tendered manner. Comment: Such a system may limit expertise of Personal Insolvency Trustees if it is anticipated that the panel would change and that members of the panel in one 3 year period would be excluded in the following 3 year period. Regulatory System A Regulatory System for Personal Insolvency Trustees is proposed whereby the Personal Insolvency Trustees would be regulated by the Debt Settlement Office. In addition at paragraph the Report suggests that the maintenance in force of a bond/security for losses by the fraud or by dishonesty of the Personal Insolvency Trustee would be required. Comment: Currently in Court liquidations, it is general practice for the liquidator to seek relief from the requirement to put in place a bond and to rely instead on its professional indemnity insurance cover. Having regard to the current difficulties in relation to insurance cover generally, it is proposed that this dual PI Insurance and Bond system would not be maintained and that instead, the requirement for a bond would be replaced with a requirement to carry a specified level of professional indemnity cover. Chapter 2 - Personal Insolvency Law: No Income, No Assets Cases and Debt Relief Orders Apart from the debt settlement process designed for the standard debtor, whose income and/or assets are such as to enable him or her to make partial repayment of his or her obligations over a reasonable period of time, the Commission also proposes a Debt Relief Order mechanism. This low cost procedure would grant debt discharge after a short waiting period to No Income, No Assets (NINA) debtors whose income and assets are such as to make bankruptcy proceedings or a repayment plan inappropriate. 2

3 The Commission proposes that secondary legislation deal with matters such as financial eligibility, application fees etc. Application Procedure The Commission recommends at paragraph 2.59 that applications for Debt Relief Orders should only be made through MABS who must confirm that, having regard to the information supplied by the debtor, the debtor appears to comply with the conditions for a Debt Relief Order. Comment: Consideration should be given to the options available to debtors who do not overcome this first hurdle e.g. an appeal mechanism against the refusal of the money advisor to refuse to submit the application. The Commission recommends at paragraph 2.63 that the Debt Relief Order procedure should be dealt with by the Debt Settlement Office and should be purely administrative in nature. It should generally not involve court involvement, though creditors should be given the right, on limited grounds, to petition the court to object to the making of a Debt Relief Order. Comment: Detailed consideration should be given to the application procedure including the procedure for notifying creditors and the grounds on which they can object to the procedure. Information required by the Debt Settlement Office The Commission recommends at paragraph 2.79 that the Debt Settlement Office should be empowered to request further information from the debtor where the Office has reasonable grounds to believe that such information is necessary in order to reach a conclusion in relation to the existence of the conditions set out in paragraph The Commission recommends that a failure of the debtor to provide such information when requested should entitle the Office to refuse to make a Debt Relief Order. Comment: Any such request for information should comply with the Data Protection Acts. Moratorium on the Enforcement of Debts The Commission recommends at paragraphs 2.85 and 2.86 that that there should be a moratorium on the enforcement or recovery of any debts included in the Order for a period of twelve months. If proceedings have already commenced, the court should be permitted to make an order staying the proceedings or allowing them to continue only subject to such terms as the court sees fit. Comment: Consideration should be given to the position of debtors and creditors between the date of application and the date of the order. Can proceedings issue during that time, is there a suggested timeframe for the application, does interest continue to accrue while the application is being processed? Creditor s objections The Commission recommends at paragraph that creditors should be empowered to object to the debtor s participation in the Debt Relief Order procedure at any point throughout the 12 month duration of the procedure. The Debt Settlement Office should be empowered to suspend the debtor s discharge for a reasonable period of time and carry out an investigation of the debtor s affairs in response to a complaint, and to amend or terminate the Order if sufficient grounds are found to exist. 3

4 Comment: It is recommended that the any such investigation comply with fair procedures i.e. the debtor should be provided with full details of the creditor s objection and allowed an opportunity to respond. Obligation to Seek Employment The Commission deliberately, at paragraph 2.103, does not comment on the obligation to be placed on debtors to seek actively, or not to refuse, available employment or the impact that a rise in income should have on the debtor s continued participation in the procedure. Comment: This should be given due consideration by the appropriate bodies. Criminal Offence The Commission recommends at paragraph that it should be a criminal offence for a debtor participating in the Debt Relief Order procedure to obtain credit above a certain limit without disclosing that a Debt Relief Order or restriction order has been made in respect of him or her and to carry on business in a name other than his or her own without disclosing the name under which the Debt Relief Order or restriction order has been made. Comment: Consideration should be given as to whether this obligation expires after a period of time. Personal Insolvency Register The Commission recommends at paragraph that where a Debt Relief Order is made, it must be registered by the Debt Settlement Office in the Personal Insolvency Register (as with Debt Settlement Arrangements). Comment: Consideration should be given as to how long a person remains on such a register, particularly in light of the research conducted by the Combat Poverty Agency detailed in paragraph 2.37 i.e. debt problems experienced by people living in poverty are caused largely by external factors and unforeseen circumstances rather than factors related to debtors own behaviour. Chapter 3 Reform of the Bankruptcy Act 1988 Comment: As a comprehensive review of the Bankruptcy Act 1988 was not undertaken by the Commission, the Society has no submissions to make in respect of this chapter. Chapter 4- Debt Enforcement: Institutional and Structural Reform Chapter 4 deals with the set-up and powers of the Debt Enforcement Office. It is a sound concept and modelled on similar institutions in other jurisdictions and achieves the creation of a centralised enforcement system under the control of a dedicated enforcement office. The Commission recommends that it be modelled on the Office of the Collector General of the Revenue Commissioners in Ireland. Comment: The Society supports the establishment and proposed functions of the Debt Enforcement Office. 4

5 Fees In Paragraph 4.30, the Commission recommends that fees should be payable by judgment creditors when applying for the enforcement of a court judgment and that these fees should be used to contribute to funding the operating costs of the proposed Debt Enforcement Office. Comment: Enforcement fees should not be so high as to restrict a judgment creditor s right of access to a court. Disclosure Requests In Paragraph 4.60, the Commission recommends that the Debt Enforcement Office should be permitted under certain conditions to make an Enforcement Information Disclosure Request, requesting a Government department (and/or the Revenue Commissioners) or requiring another specified person, to disclose specified information concerning the debtor, necessary for the effective enforcement of a judgment. In Paragraph 4.62, the Commission recommends that the Debt Enforcement Office should also be empowered to make Enforcement Information Disclosure Requests requiring other bodies such as banks, credit unions and credit reporting companies to disclose specified information concerning the debtor s means. Comment: The debtor s right to privacy and his/her rights under the Data Protection Acts must be safeguarded. The law must ensure proportionate and appropriate enforcement in each individual case. Chapter 5 Debt Enforcement: Reform of Individual Enforcement Mechanisms Chapter 5 deals with the enforcement of judgements. The Commission recommends a number of substantial changes to the existing law in this area. It recommends clarification and codification of the law in certain areas as well as recommending guidelines. The areas included are:- Instalment Orders, Attachment of Debts Orders, clarification of the law and codification of the procedure for receivers by way of equitable execution, attachment of earnings, Goods Seizure Orders and the abolition of the procedures for imprisonment of debtors for non-payment. Instalment Orders A number of different types of Instalment Orders are proposed. At paragraph 5.18 the Commission recommends that suspended Orders, which come into effect automatically in the case of a failure to comply with an Instalment Order, should be capable of being made. Comment: Detailed consideration should be given to how this automatic effect will operate and whether the effect will be the same for the entire period of the Instalment Order. Consideration should also be given to the nature and type of notification to and by debtors, the creditors and the Debt Enforcement Office, of the failure. 5

6 Attachment of Debts Orders At paragraph 5.57, the Commission recommends that it should be possible to attach a joint bank account to satisfy a debt and that a presumption should exist that the bank account is held 50/50 unless the nondebtor produces evidence to the Debt Enforcement Office after receiving a notice. Comment: The notice to the non-debtor should comply with the Data Protection Acts and the privacy rights of both the debtor and non-debtors. Consideration should also be given to the nature and type of notification to and by non-debtors. Consideration needs to be given to a procedural mechanism to protect the rights of the non-debtor. Consideration should also be given to the calculation of the appropriate length of time between a decision to attach debts and the final order. Attachment of Earnings At paragraph the Commission recommends that legislation should prohibit not only the dismissal of an employee on the ground that he or she has become subject to one or more attachment of earnings orders, but should also prohibit any other adverse action being taken against the employee. Comment: While it is acknowledged by the Commission that employment legislation lies outside the scope of the report, consideration should also be given to how such an order may affect a debtor s employment prospects. At paragraph the Commission recommends that a debtor who is subject to such an order would have a duty to inform the Debt Enforcement Office of any change in his/ her employment and that a new employer would have a duty to notify the office that it is the debtor s new employer. Comment: Consideration should be given to the protection of the rights of a new employer who may not be aware that the order exists. Goods Seizure order The Commission recommends at paragraph that the Debt Enforcement Office prepare guidelines indicating the circumstances in which the use of execution against goods would be appropriate and proportionate. Comment: Consideration should be given to how the information required for these proposed guidelines might be obtained and to ensure that the costs to the Debt Enforcement Office and/or the enforcement officers are proportionate. Law Society of Ireland May

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