i e AT 1 of 2012 DEBT RECOVERY AND ENFORCEMENT ACT 2012

Transcription

1 i e AT 1 of 2012 DEBT RECOVERY AND ENFORCEMENT ACT 2012

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3 Debt Reovery and Enforement At 2012 Index i e DEBT RECOVERY AND ENFORCEMENT ACT 2012 Index Setion Page PART 1 INTRODUCTORY 5 1 Short title Commenement Interpretation... 5 PART 2 LICENSED DEBT COLLECTORS 6 4 Requirement for a liene Appliation for a liene Grant or refusal of a liene Treasury guidane, ode of pratie, handling of monies and annual reports Appeals Fees... 8 PART 3 ENFORCEMENT OF DEBTS 8 10 Powers to enfore exeutions Powers in respet of fixed penalties for road traffi offenes Creditors assistane orders Powers to enter, searh and seize, et Disposal orders Priority of debts PART 4 OFFENCES Unliensed debt olleting Obstrution or impersonation of liensed debt olletor Penalties and supplementary provisions PART 5 CLOSING PROVISIONS Transfer of funtions Tynwald proedure Transitional provision AT 1 of 2012 Page 3

4 Index Debt Reovery and Enforement At Amendment of Landlord and Tenant At Amendment of Money Lenders At Amendment of High Court At Amendment of Protetion from Harassment At Page 4 AT 1 of 2012

5 Debt Reovery and Enforement At 2012 Setion 1 i e DEBT RECOVERY AND ENFORCEMENT ACT 2012 Signed in Tynwald: 12 July 2011 Reeived Royal Assent: 9 February 2012 Announed to Tynwald: 21 February 2012 AN ACT to provide for the liensing of debt olletors; to provide ertain powers in respet of the reovery of debts; and for onneted purposes. BE IT ENACTED by the Queen s Most Exellent Majesty, by and with the advie and onsent of the Counil and Keys in Tynwald assembled, and by the authority of the same, as follows: PART 1 INTRODUCTORY 1 Short title The short title of this At is the Debt Reovery and Enforement At Commenement (1) This At, other than setion 1 and this setion, omes into operation on suh day or days as the Treasury may by order appoint. (2) An order under subsetion (1) may ontain suh onsequential, supplementary, inidental and transitional provisions as the Treasury onsiders appropriate. 3 Interpretation (1) In this At debt olleting servies means the taking of steps, on behalf of a reditor, to proure the payment of a debt due to the reditor; Judiial Offier has the same meaning as in setion 3C of the High Court At 1991; liene means a liene granted in aordane with Part 2; liensed debt olletor means a person to whom a liene has been granted. AT 1 of 2012 Page 5

6 Setion 4 Debt Reovery and Enforement At 2012 (2) The following terms have the same meaning as in setion 26(1) the Administration of Justie At 1981 [.8] () exeution; exeution debtor; exeution order. PART 2 LICENSED DEBT COLLECTORS 4 Requirement for a liene (1) A person arrying on debt olleting servies must hold a liene granted in aordane with this Part. (2) However, no liene is required if the person (3) In this setion is ating in the normal ourse of business as either a Coroner or lokman, or as an advoate; is the reditor or an employee or relative of the reditor. employee in the ase of a body orporate, inludes an offier or member of the body orporate; relative means husband, wife, ivil partner, brother, sister, anestor or lineal desendant. 5 Appliation for a liene (1) An appliation for a liene must be made to the Chief Registrar and be in suh form as the Chief Registrar may require. (2) The appliation must be aompanied by suh douments and information as the Chief Registrar may require together with suh fee as the Treasury may publish. 6 Grant or refusal of a liene (1) The Chief Registrar must not issue a liene unless he or she is satisfied that the appliant is a fit and proper person to arry on debt olleting servies; and has an adequate level of insurane over in respet of the range of debt olleting servies offered by him or her. (2) If the liene is granted the Chief Registrar may impose suh onditions as he or she onsiders reasonable in the partiular irumstanes. (3) If the liene is refused or if any onditions are imposed the Chief Registrar must give the appliant an opportunity to be heard and, when so requested by the appliant, must give reasons for the deision. Page 6 AT 1 of 2012

7 Debt Reovery and Enforement At 2012 Setion 7 (4) The Chief Registrar, having given the liensed debt olletor an opportunity to be heard, may at any time () (d) make a liene subjet to onditions or, as the ase requires, further onditions; suspend a liene; revoke a liene; or vary any ondition to whih a liene is subjet, and must give reasons for the deision. (5) Where the Chief Registrar suspends a liene under subsetion (4), he or she must review the suspension at intervals of not less than 6 months and one the liene has been suspended for 2 years it is treated as being revoked. 7 Treasury guidane, ode of pratie, handling of monies and annual reports (1) In disharging his or her funtions under this At the Chief Registrar must have regard to suh guidane as the Treasury may publish as to the riteria to be applied in granting, suspending or revoking a liene, or imposing or varying the onditions of a liene. (2) The Treasury must publish a ode of pratie with respet to the ondut of liensed debt olletors and suh ode must be taken into aount by the Chief Registrar in deiding whether to suspend or revoke a liene, or vary its onditions; by a Judiial Offier in deiding whether or not to grant an appliation under setion 12 or setion 13. (3) The Treasury must make regulations about the retention and handling of monies reeived by liensed debt olletors and may provide for any breah of the regulations to be an offene punishable on summary onvition by a fine not exeeding 5,000. (4) The Chief Registrar shall eah year publish a report on the enforement of judgments by liensed debt olletors to be laid before Tynwald, and may require information to be provided by liensed debt olletors for the purposes of the report. 8 Appeals A person aggrieved by a deision of the Chief Registrar under this At may appeal to the Finanial Servies Tribunal as if the deision were a deision mentioned in setion 32(3) of the Finanial Servies At AT 1 of 2012 Page 7

8 Setion 9 Debt Reovery and Enforement At Fees (1) The Treasury must publish the maximum fees that liensed debt olletors may harge in respet of debt olleting servies in the following ategories () (d) a fee payable by the reditor on engaging the liensed debt olletor; a fee payable in onnetion with suh servies on the part of the liensed debt olletor as may be speified; a fee based on suh perentage of the debt to be reovered; an overall maximum fee that may be harged. (2) The published maximum fees may provide for different maxima in different irumstanes or ases. (3) Liensed debt olletors may harge fees in any or all of the ategories mentioned in subsetion (1) and may provide for fees in any ategory to be alternative to fees in any other ategory depending on the irumstanes. PART 3 ENFORCEMENT OF DEBTS 10 Powers to enfore exeutions (1) A liensed debt olletor has the power to enfore an exeution, or any warrant expressed to be enforeable in the same manner as an exeution, in aordane with this At and to reover from the exeution debtor () (d) all sums due (inluding interest) and payable under the exeution order; any further interest that a Coroner may have levied by virtue of setion 9(5) of the Administration of Justie At 1981; all fees whih the liensed debt olletor is entitled to harge by virtue of setion 9 in onnetion with the enforement together with any expenses reasonably inurred; any osts harged by virtue of regulations made under setion 14(2) (osts on disposal). (2) However, an exeution debtor may, within 7 days of the order for exeution, apply to the Chief Registrar for an order that the debt may be paid by instalments and where the Chief Registrar makes suh an order and the exeution debtor makes payments as required by the order, this Part shall not apply in respet of that debt. (3) The Treasury may, by regulations, make additional provision about the enforement of exeutions by liensed debt olletors. Page 8 AT 1 of 2012

9 Debt Reovery and Enforement At 2012 Setion Powers in respet of fixed penalties for road traffi offenes The Treasury may, by regulations, provide for liensed debt olletors to enfore a sum payable in default whih has been ertified under paragraph 10 of Shedule 5A (fixed penalties) to the Road Traffi Regulation At 1985 for enforement against a defaulter. 12 Creditors assistane orders (1) A Coroner or liensed debt olletor may apply to a Judiial Offier for an order under this setion (to be known as a reditors assistane order ) for the purposes of obtaining information from a body speified in the appliation as to the whereabouts of an exeution debtor; disovering, seizing and retaining the property whih a deposittaking institution speified in the appliation holds on behalf of an exeution debtor. (2) An appliation for a reditors assistane order must be supported by an affidavit setting out the grounds for the appliation. (3) A reditors assistane order may require the body onerned to dislose the last known address of the exeution debtor; the deposit-taking institution onerned to dislose the property whih the deposit-taking institution holds on behalf of an exeution debtor and to produe all or some of that property to the Coroner or liensed debt olletor. (4) The property produed by virtue of a reditors assistane order must be the lowest amount the value of whih, in the opinion of the deposittaking institution, meets the total amount reoverable from the exeution debtor. (5) Before granting a reditors assistane order, the Judiial Offier must be satisfied that the interests of justie in granting the order signifiantly outweigh any detriment that the exeution debtor may suffer as a result of it. (6) A reditors assistane order must not authorise the seizure and retention of items subjet to legal professional privilege. (7) In this setion deposit-taking institution means any person arrying on a business whih is a deposit-taking business under the Finanial Servies At 2008 and inludes a building soiety established under the Industrial and Building Soieties At 1892 and a United Kingdom building soiety whih is liensed to aept deposits under the Finanial Servies At (8) This setion does not limit the powers of a Coroner under any other enatment. AT 1 of 2012 Page 9

10 Setion 13 Debt Reovery and Enforement At Powers to enter, searh and seize, et (1) A liensed debt olletor may apply to a Judiial Offier for the issue of a warrant under this setion for the purposes of enforing an exeution order. (2) An appliation for a warrant under this setion must be supported by an affidavit setting out the grounds for the appliation. (3) A warrant under this setion may authorise the liensed debt olletor at any reasonable hour () to enter suh premises as are speified in the warrant, using, if neessary, reasonable fore; to searh those premises for property belonging to the exeution debtor; and to seize and retain any property belonging to the exeution debtor. (4) The property seized and retained by virtue of a warrant under this setion must be the lowest amount the value of whih, in the opinion of the liensed debt olletor, meets the total amount reoverable from the exeution debtor. (5) Before issuing a warrant under this setion, the Judiial Offier must be satisfied that the interests of justie in issuing it signifiantly outweigh any detriment that the exeution debtor may suffer as a result of it. (6) A warrant under this setion must not authorise the seizure and retention of items subjet to legal professional privilege. (7) No property mentioned in paragraph 2 of Shedule 1 to the Administration of Justie At 1981 may be seized and retained by virtue of a warrant under this setion. 14 Disposal orders (1) Where a deposit-taking institution has produed property to a liensed debt olletor under setion 12(3); or a liensed debt olletor has seized and retained property by virtue of a warrant issued under setion 13, the liensed debt olletor may apply to a Judiial Offier for an order (to be known as a disposal order ) to enable him or her to dispose of the property in full or part satisfation of the amount reoverable from the exeution debtor. (2) The Treasury must make regulations providing for the method by whih property whih is the subjet of a disposal order may be disposed of, for an independent valuation of the property to be provided in appropriate Page 10 AT 1 of 2012

11 Debt Reovery and Enforement At 2012 Setion 15 irumstanes and for the osts that may be harged in respet of the disposal to be presribed in or in aordane with the regulations. (3) The balane of any monies after payment of debts and any harges authorised by this At is the property of the exeution debtor. 15 Priority of debts The Judgments Register established and maintained by the Chief Registrar under setion 15 of the Administration of Justie At 1981 must, where appropriate, indiate the priority of debts in aordane with the Debtors At 1820 and the Preferential Payments At PART 4 OFFENCES 16 Unliensed debt olleting A person who arries on debt olleting servies in ontravention of setion 4 is guilty of an offene. 17 Obstrution or impersonation of liensed debt olletor A person who is guilty of an offene. wilfully obstruts or impedes a liensed debt olletor in the performane of his or her duties; or with the intent to deeive, impersonates a liensed debt olletor, 18 Penalties and supplementary provisions (1) A person who ommits an offene under this At is liable on onvition on information, to ustody for not more than 2 years, a fine, or both; on summary onvition, to ustody for not more than 6 months, a fine not exeeding 5,000, or both. (2) If an offene under this At ommitted by a body orporate is proved to have been ommitted with the onsent or onnivane of, or to be attributable to neglet on the part of, a diretor, manager, seretary or other similar offier of the b ody orporate or a person who was purporting to at in suh a apaity, that person, as well as the body orporate, is guilty of the offene and liable to be proeeded against and punished aordingly. (3) If the affairs of a body orporate are managed by its members, subsetion (2) applies in relation to the ats and defaults of a member in onnetion AT 1 of 2012 Page 11

12 Setion 19 Debt Reovery and Enforement At 2012 with his or her funtions of management as if that person were a diretor of the body orporate. PART 5 CLOSING PROVISIONS 19 Transfer of funtions (1) Shedule 2 to the Government Departments At 1987 applies to the funtions of the Chief Registrar under this At as it applies to a Department, so as to enable the transfer of those funtions to any Department, Statutory Board or other person or body as an order made under that Shedule may speify. (2) Aordingly, referenes in that Shedule to a Department shall be onstrued as inluding a referene to suh a person or body. 20 Tynwald proedure Regulations made under this At must be laid before Tynwald. 21 Transitional provision Any person arrying on debt olleting servies on the ommenement of setion 16 are treated as holding a liene for 12 months from the date of suh ommenement (subjet to setion 6(4)). 22 Amendment of Landlord and Tenant At 1954 After setion 16 of the Landlord and Tenant At 1954 insert «16A Supplementary power of High Court When making an order for the reovery of possession of any property the High Court may, if it thinks fit, provide that the order shall be enfored by a liensed debt olletor within the meaning of setion 3 of the Debt Reovery and Enforement At 2012.». 23 Amendment of Money Lenders At 1991 Setion 7(3) of the Money Lenders At 1991 is repealed. 24 Amendment of High Court At 1991 After setion 46(4) of the High Court At 1991 add «(5) This setion does not limit the power of a liensed debt olletor within the meaning of the Debt Reovery and Enforement At 2012, when enforing an exeution, to seize and retain money whih is due to the exeution debtor.». Page 12 AT 1 of 2012

13 Debt Reovery and Enforement At 2012 Setion Amendment of Protetion from Harassment At 2000 After setion 1(3) of the Protetion from Harassment At 2000 add «(4) Where the person pursuing the ourse of ondut is a Coroner or a liensed debt olletor within the meaning of the Debt Reovery and Enforement At 2012 and the person is taking reasonable steps to reover a debt on behalf of a reditor, the ourse of ondut shall be presumed to be reasonable.». Printed (by Authority) by the Isle of Man Post Offie No AT 1 of 2012 Page 13