Bankruptcy Proposal Form

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1 INTRODUCTION Many Canadians will face a financial crisis at some point in their lives. Many debt problems are easy to solve while others need professional assistance. The first step in dealing with financial problems is to admit to having them and secondly to get control before they get out of hand. This booklet may help you decide whether or not you have a serious debt problem. It also gives some suggestions for solving your difficulties and avoiding them in the future. The information in this booklet is meant for individuals. If you are involved in the ownership of a corporation having financial difficulties, please contact our office to discuss other possible solutions. Allan Marshall & Associates have been providing a full range of insolvency services to the citizens of New Brunswick since Our firm specializes in insolvency matters for both individuals and corporations and offers services such as Debt Counselling, Proposals and Bankruptcy. If, after reading this booklet, you wish to discuss your situation further, please complete the enclosed Consumer Information Form and call to schedule an appointment. Saint John (506) Fredericton (506) Toll Free Alternatively, you may find a telephone interview would save you time and travel. If you wish a telephone interview please complete a Consumer Information Form and return same to our office, along with the telephone number(s) where you can be reached. Please note, there is no charge or obligation associated with your initial consultation by either personal or telephone interview. Readers are reminded that our Solutions to Debt Problems booklet is not meant to be used for legal purposes, only to provide information to individuals who are having financial difficulties.

2 RECOGNIZE THE DANGER SIGNALS You may have a debt problem, or are going to have one, if: you continually go over your spending limit or you use your credit cards as a necessity rather than a convenience; you are always borrowing money to make it from one payday to the next; you pay only interest or service charges monthly and do not reduce your total debt over many months; creditors harass you for payment, threaten to sue or repossess your car, furniture or television, or hire a collection agency to recover the money for them; or utility companies cut off service because your bills have gone unpaid; your pay has been garnished; cheques continually bounce and your bankbook is not balanced regularly. POSSIBLE SOLUTIONS Contact your creditors Explain why you can't make your payments and suggest making lower payments over a longer period of time. You may be surprised but many creditors are willing to accept such arrangements. Debt consolidation loan You can ask a bank or financial institution about combining or consolidating your debts into one loan. In such a case, the bank or financial institution will pay off all your debts and, in return, you make monthly payments to that creditor. Make sure to shop around because interest rates may vary. It is important to stop buying on credit, because continuing to use credit could make your debt load too great for you to handle. Proposals Under the Bankruptcy and Insolvency Act you may make a proposal to your creditors to reduce the amount of your debts, extend the time you have to pay off the debt, or provide some combination of both. Proposals are explained later in more detail. Bankruptcy If none of the above methods solve your debt problem, you may choose to consider bankruptcy. Bankruptcy should be a last alternative if you cannot meet your financial responsibilities through affordable payments over a specific period of time. Bankruptcy is a legal process performed under the Bankruptcy and Insolvency Act. This process relieves you of most debts, and legal proceedings against you by creditors should stop. Bankruptcy is explained later in more detail.

3 ISSUES OF CONCERN Co-signers Your bankruptcy does not cancel the responsibility of anyone who has guaranteed or co-signed a loan on your behalf. Harassment One of the objectives of the Act is to relieve you of pressure from your creditors. If you receive phone calls or letters from creditors, tell them that you are bankrupt, or have made a proposal, and refer them to your Trustee or administrator. Banking and Bank Accounts If you owe money to your bank and maintain an account with that bank, the bank has the right to apply set off and to take money out of your account to put towards the debts you owe them. To ensure you control your banking you may consider opening an account with an institution to which you do not owe. You can then establish the payments from your new account that you wish to continue to pay. (For example: your insurance) OFFICIALS WHO ADMINISTER BANKRUPTCY AND PROPOSALS Superintendent of Bankruptcy The Superintendent of Bankruptcy is a federally appointed official who oversees the administration of the Bankruptcy and Insolvency Act in Canada with the help of his officers known as Official Receivers. Official Receivers The administration of the Bankruptcy and Insolvency Act is conducted by Official Receivers. They receive the documents and monitor the Trustees on behalf of the Superintendent. Trustee in Bankruptcy A Trustee in Bankruptcy is a person licensed by the Superintendent of Bankruptcy to administer proposals and bankruptcies. The Trustee is an Officer of the Court and represents the creditors. However, the Trustee can give you information and advice about both the proposal and bankruptcy process making sure your rights, as well as those of the creditors, are respected.

4 PROPOSALS In many instances it may be possible to file a proposal with creditors to reduce or extend payments, instead of declaring bankruptcy. Even though proposals are administered by a Trustee in Bankruptcy, they are distinctly different from bankruptcy in that they allow a debtor to remain in possession and control of their assets. Under the Bankruptcy and Insolvency Act, a Trustee or an administrator files a proposal between a debtor and their creditors. A proposal can be written in such a way that only a portion of the debts will be paid, the time for payment may be extended, or the proposal may provide for a combination of these options. Proposals can be written as creatively as the writer would like and are tailored to the debtors individual situation, assets, debts or other unique circumstances. The underlining theme that guides any proposal is to offer creditors a proposal that will provide them more than they would otherwise receive in bankruptcy. Proposal s should be written is such a way that will be realistic and fair to both the creditors and the debtor. ATrustee will help in determining if a debtor has the ability to file a viable proposal. A proposal is simply an agreement between a debtor and their creditors to pay a specific amount, at specified intervals for a predetermined amount of time. If a proposal is made and is accepted by creditors and approved by the court, then the proposal is legally binding on all creditors whether they voted to accept the proposal or not. For a proposal to succeed, it will generally require a situation where at least one of the following is applicable: Steady employment which provides a level of income that is above that necessary for normal living requirements; Third parties, such as parents, who are prepared to provide funding or guarantees for the proposal settlement; Assets that would otherwise not be available to creditors be voluntarily offered as part of the proposal. There are two types of proposals that can be filed under the Bankruptcy and Insolvency Act, Consumer Proposal and Division I Proposal each provide different advantages and restrictions.

5 CONSUMER PROPOSAL Who can file? A consumer proposal is a streamed line proposal that is available to individuals who are insolvent and do not have debts that exceed $75,000, excluding mortgages on a principle residence. How do you file? You would contact a Trustee in Bankruptcy s office and make an appointment to discuss your situation. If a viable proposal can be filed, an authorized administrator will work with the debtor to formulate the proposal and send it to creditors. What happens after you file? When a proposal is filed a stay of proceedings is placed on the creditors, that prevents them from taking further collection or legal proceedings. This type of proposal does not require a creditors meeting, unless requested by 25% or more of the proven creditors or the Official Receiver. What happens if the proposal is not accepted, refused by the Court or default occurs? If the proposal is not accepted, if it is refused by the court, or if default occurs, the proposal will be annulled. The effect of this is to lift the stay of proceedings and allow creditors to continue with their collection proceedings. How much does a Consumer Proposal cost? The fees for a consumer proposal are determined by the Bankruptcy and Insolvency Act and are based on the amount of funds paid to the Trustee under the proposal. DIVISION I PROPOSAL Who can file? A division I proposal is available to both companies and individuals who are insolvent and does not have an upper limit on how much you can owe. How do you file? You would contact a Trustee in Bankruptcy s office and make an appointment to discuss your situation. If a viable proposal can be filed a Trustee in Bankruptcy will work with the debtor to formulate the proposal and after filing it with the Superintendent of Bankruptcy, send it to creditors. What happens after you file? When a proposal is filed it will provide protection from creditors by way of a stay of proceedings. Acreditors meeting will be scheduled by the Trustee for creditors to discuss and vote on the proposal. If the proposal passes and is ratified by the Court, the debtor would have a new legally binding contract with creditors. What happens if the proposal is not accepted, refused by the Court or default occurs? If the proposal is not accepted by the creditors, if the Court refuses to ratify it, or if the debtor defaults on the terms of the proposal the debtor will be deemed bankrupt. Bankruptcy would keep in place the stay of proceedings that offers protection to the debtor against the creditors. How much does a Division I Proposal cost? The costs for this type of proposal will vary depending on the complexity of the proposal, the hours spent by the Trustee s staff, etc. The payment of the Trustee s fees can come from the funds paid under the proposal. The costs would be explained when you meet with the Trustee to discuss your situation.

6 BANKRUPTCY What is bankruptcy? Bankruptcy is a legal process that permits an honest, but unfortunate, debtor the ability to obtain a discharge from his or her debts, subject to reasonable conditions. The purpose of this act is to allow debtors, who would otherwise be unable, the ability to have a fresh financial start. Who can file for bankruptcy? Any Canadian citizen that is insolvent can file for bankruptcy. To be insolvent means to: 1) Owe at least $1,000; 2) Not to be able to meet your debts as they are due to be paid. How do I go into bankruptcy? The most common way to go into bankruptcy is by voluntary assignment. To make an assignment you would have to meet with a Trustee to discuss your situation and determine if bankruptcy is an appropriate solution to your situation. You would then have to sign bankruptcy documents which are filed with the Superintendent of Bankruptcy. You are NOT BANKRUPT until you sign the bankruptcy documents and they are filed with the Official Receiver. What is a Trustee s role in bankruptcy? During bankruptcy a Trustee administers the estate and will act to protect the bankrupt s rights, while at the same time attempt to realize the maximum amount available to creditors. Will my creditors stop harassing me? Harassment must cease once the documents are filed. The stay of proceedings in a bankruptcy prevents a creditor from taking or continuing any further legal or collection actions. This however does not apply to a secured creditor, such as a bank holding a mortgage that is in default. What do I do if a creditor tries to sue me? Bankruptcy prevents a creditor from commencing or continuing most court actions. If a creditor commences a court action, then the bankrupt should immediately inform the Trustee s office and provide any documentation that was received relating to the action. Should I continue to pay any creditors? When you become bankrupt, it is an offence to continue to pay any preferred or unsecured creditors. If you wish to continue to pay for a secured asset you should discuss this with your Trustee. Can I continue to pay to a secured creditor for an asset? Yes, you must continue to pay a secured creditor if you wish to retain the asset. Secured creditors are not affected by a bankruptcy, either you pay them for the asset or they have the right to realize on their security. If you are considering continued payment to a secured creditor you should first discuss your situation with your Trustee.

7 What happens to my wages? When you go into bankruptcy you will be provided a monthly income and expense form (these forms are provided by the Trustee) to be filled out monthly and sent to the Trustee. The Trustee will use these forms to monitor your wages, salaries and commissions, during the course of the bankruptcy. While you are in bankruptcy the Trustee is required to apply the Superintendent of Bankruptcy guidelines that set out normal maximum amounts required for living expenses for a household family unit. If there are surplus funds after the guidelines are applied then a portion of that surplus must be paid to the Trustee for the general benefit of creditors. ATrustee will review your situation and discuss with you the amount that you would be required to pay (if any) as a result of the Superintendent s guidelines. After acquired Assets? Non-exempt assets that are acquired during the bankruptcy may be taken by the Trustee for the general benefit of creditors. For example these assets may include but are not limited to an inheritance, lottery winnings or non-exempt assets that you are given or purchase. To prevent losing an asset you should consult with your Trustee before purchasing any non-exempt assets during bankruptcy. Exempt Assets? Exempt assets are the assets that you are permitted to retain, subject to any prior rights by a secured creditor, even during a bankruptcy. Exempt assets will vary slightly from province to province. A Trustee will discuss your exempt assets during your initial meeting, however the basic exemptions in New Brunswick are as follows: Avehicle that is required for employment up to a value of $6,500; Household goods and personal effects up to $5,000; Tools of trade up to a value of $6,500; Certain types of RRSP s; and others to be explained by the Trustee if applicable. Counselling Should you decide to make a consumer proposal or declare bankruptcy, you will receive counselling in accordance with directives issued by the Superintendent of Bankruptcy. This is required by the Bankruptcy and Insolvency Act. The first counselling session will be an assessment of your financial situation, a discussion of your problems and possible options, and a review of your rights and responsibilities. The second counselling session will help you discover and understand the causes of your insolvency which, in some instances, may be non-budgetary, and look at possible remedies. You must attend these two sessions. If you feel that you need additional help or assistance, a third counselling session is available, if you request it.

8 Income tax returns Two income tax returns must be completed for the year in which you become bankrupt. The pre-bankruptcy return will be filed by the Trustee and covers the period from the beginning of the year to the date of your bankruptcy. The post-bankruptcy return covers the period from the date of bankruptcy to the end of the calendar year. You will be required to provide your Trustee details and documentation to support these returns. Assessment notices and refunds relating to the bankrupt s pre-bankruptcy return are estate assets and are mailed directly to the Trustee. You may be asked to assign the refund from your post-bankruptcy return to the Trustee for distribution to your creditors. If you are requested to assign and refuse, the Trustee or a creditor may apply for a court order in this respect or it may be reported to the court at the time of your discharge. HST Refunds? HST refunds are sent by the government to the Trustee and are retained until receipts in an estate provide for a dividend to creditors. Duties and Responsibilities? An individual in bankruptcy is required to perform certain duties by law. The Trustee will provide a full statement of the statutory duties which include remitting all credit cards to the Trustee at the time of your assignment and keeping the Trustee advised of your address at all times until discharged. Debts not discharged by bankruptcy: Fines imposed by a Court; Money owing for things stolen; Property obtained by fraud or by false misrepresentation; Alimony or maintenance payments; Award of damages by a court for intentionally inflicting bodily harm or sexual assault; Student loans if bankruptcy is filed within 10 years after your last attendance at school or the completion of your studies. (Currently the time limit on student loans is under review. If you wish to verify the time limit please contact our office.) How long will I be in bankruptcy? There will be an automatic discharge for first-time bankrupts nine months after they became bankrupt unless it is opposed by a creditor, the Trustee or the Superintendent of Bankruptcy. If an opposition is filed, the Trustee will have to obtain a date for a court hearing. The party who opposes the discharge will have to give their reasons to a court official who will make a decision. It should be noted that a first-time individual bankrupt who refuses or neglects to receive the required counselling sessions will not qualify for an automatic discharge.

9 What is a bankrupt s discharge? A bankrupt s discharge is an order releasing a bankrupt from bankruptcy. The effect of a bankrupt s discharge is to release the bankrupt of all debts, owed at the time of bankruptcy, with the exception of those specifically provided for that survive bankruptcy. What kind of discharge orders can a Judge or Registrar issue? At a hearing for a discharge the court decides whether to postpone the hearing to a later date, refuse the discharge, or issue any of the following orders: I) Order of Absolute Discharge This official document relieves you of the debts incurred before you declared bankruptcy taking under consideration the exceptions provided in the Act. II) III) IV) Order of Conditional Discharge The court may impose certain conditions that must be met before your discharge becomes absolute. For example, you may be asked to pay an amount to your Trustee for distribution to your creditors. Order of Suspended Discharge The court orders a delay so that the discharge will not be effective until a certain date. Order Refusing the Discharge of the Bankrupt The bankrupt s debts are not discharged. (This is VERY RARE.) Your discharge may be delayed by: an objection by a creditor; an objection by the Trustee or Superintendent; an ongoing criminal investigation, or a breach of your duties as specified in the Bankruptcy and Insolvency Act. What does it cost to go bankrupt? There is a minimum fee set by the tariff under the Bankruptcy and Insolvency Act relating to the administration and disbursements in a bankruptcy estate. The Trustee will clearly explain the cost of a bankruptcy that pertains to your individual situation during your first consultation. Usually, the Trustee will allow for a minimum down payment and then, set out a payment plan that allows for monthly payments for the remaining costs.

10 CONCLUSION Trustees, like other legal professionals, strive to offer the most appropriate solutions to your financial situations. To enable us to better understand your situation and identify your options, we require a Consumer Information Form be completed. Once you have completed the Consumer Information Form, you can contact our office to schedule an interview, either by telephone or in person. (Before a telephone interview can be scheduled, we must first receive your completed information form) The first interview is simply an information session, to advise you of your rights, options, dispel rumors, and provide answers to your questions. There is NO CHARGE and NO OBLIGATION associated with filling out our Consumer Information Form or attending an Interview. NOTES

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