Discharge from bankruptcy

Transcription

1 BRIEFING PAPER Number 3043, 8 October 2015 Discharge from bankruptcy By Lorraine Conway Inside: 1. Official receiver s claim to the bankruptcy estate 2. How is after-acquired property treated? 3. Automatic discharge from bankruptcy 4. Proof of discharge 5. Order to suspend discharge 6. Bankruptcy Restrictions Orders and undertakings 7. The bankrupt s position after discharge 8. How does discharge from bankruptcy differ from annulment? intranet.parliament.uk/commons-library

2 Number 3043, 8 October Contents Summary 3 1. Official receiver s claim to the bankruptcy estate 4 2. How is after-acquired property treated? 5 3. Automatic discharge from bankruptcy 6 4. Proof of discharge 8 5. Order to suspend discharge 9 6. Bankruptcy Restrictions Orders and undertakings Bankruptcy Restrictions Order Interim Bankruptcy Restrictions Order Bankruptcy Restrictions Undertaking The bankrupt s position after discharge Overview What happens to public records after discharge? 13 Individual Insolvency Register 13 HM Land Registry 13 Credit reference agencies What happens to the family home after discharge? What happens to assets obtained after discharge? How does discharge from bankruptcy differ from annulment? 15 Cover page image copyright: Money UK British pound coins by hitthatswitch. Licensed under CC BY 2.0 / image cropped.

3 3 Discharge from bankruptcy Summary Discharge from bankruptcy is a legal term used to describe the process that frees a person from the restrictions of bankruptcy and releases them from most of the debts they owed at the date of the bankruptcy order. A bankrupt will usually be automatically discharged 12 months after the date of the bankruptcy order, even if no payments have yet been made to creditors. After discharge, the bankrupt is released from all bankruptcy debts and any property he acquires after his discharge is his; the official receiver (or trustee in bankruptcy) cannot lay claim to it. However, property comprised in his estate at the time of the bankruptcy order remains under the control of the official receiver to be sold for the benefit of the creditors. The official receiver (or trustee) may apply to the court for an order to stop automatic discharge from bankruptcy taking place. This is called suspension of discharge. The official receiver might do this in circumstances where the bankrupt has refused to provide information or otherwise not fully co-operated with him. Alternatively, the official receiver may apply to the court for a Bankruptcy Restrictions Order or accept a Bankruptcy Restrictions Undertaking. In either case, the bankrupt will continue to be subject to restrictions for the period stated on the order or undertaking (usually between two and fifteen years). The official receiver might do this in cases where the bankrupt has abused the system or whose conduct has been dishonest, reckless or otherwise culpable. However, a Bankruptcy Restrictions Order or Undertaking will not affect the discharge of the bankrupt s debts. The purpose of this note is to provide an overview of the discharge from bankruptcy procedure. In the process, it also considers the effect of discharge; the circumstances which may cause automatic discharge to be postponed by the court; and when a Bankruptcy Restrictions Order may be imposed.

4 Number 3043, 8 October Official receiver s claim to the bankruptcy estate Bankruptcy procedure is determined by provisions of the Insolvency Act 1986 (as amended) [the IA 1986], the Insolvency Rules 1986 (as amended) and the Enterprise Act 2002 [EA 2002]. Once a bankruptcy order has been made by the court, the official receiver (or, if appointed, a private insolvency practitioner acting as trustee in bankruptcy) is legally entitled to seize assets in the bankrupt s estate at the time of the bankruptcy order. 1 The primary objective of the official receiver is to raise money to pay the bankrupt s creditors. The bankrupt s estate consists of all the property which belongs to or is vested in the bankrupt at the commencement of his bankruptcy, which is taken to be the date on which the bankruptcy order is made (see Box 1 below). 2 Box 1: Definition of the bankrupt s estate Section 283(1) of the IA 1986 defines the bankrupt s estate as: 283.-(a) all property belonging to or vested in the bankrupt at the commencement of the bankruptcy; or (b) any property which is or is treated as being comprised in the estate by virtue of the provisions of the Act which relate to the insolvency of individuals 3 Under section 436 of the IA 1986, the term property is defined widely. It includes: money, goods, things in action, and every description of property wherever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property. This means that the official receiver may claim property belonging to, or obtained by, the bankrupt at any time before discharge. (For example, the court may order that part of the bankrupt's income from employment should be paid to the official receiver). In addition, it is clear that the statutory definition of property draws into the bankrupt s estate future and contingent interests, so long as they exist as proprietary interests at the date of the bankruptcy order (a possible example may be a beneficial interest in a life policy). 1 Section 283(2) of the Insolvency Act Section 278(a) of the Insolvency Act Section 283(1) of the Insolvency Act 1986

5 5 Discharge from bankruptcy 2. How is after-acquired property treated? After-acquired property is any property (but not income) which has been acquired by or devolved upon the bankrupt during the bankruptcy (i.e. after the date of the bankruptcy order and before the date of discharge). The bankrupt must declare all after-acquired property to the official receiver. The official receiver can make a claim to it, under section 307 of the IA 1986, for the benefit of the creditors (subject to certain time limitations). The official receiver is required to notify the bankrupt in writing of his claim within 42 days of his becoming aware of the afteracquired property. It should be noted that the official receiver may still claim after-acquired property (even if they only become aware of it after the bankrupt s discharge) providing it was acquired by, or devolved upon, the bankrupt during the bankruptcy. Before claiming any property under section 307 of the IA 1986, the official receiver should be satisfied that the realisation of the property will produce a net benefit to the estate. For example, the official receiver might make a claim to after-acquired property where the bankrupt receives an inheritance. The relevant date is the date of the death of the person who made the will. So long as the person dies prior to the bankrupt s discharge, the property bequeathed can be claimed by the official receiver (even where it is not received by the bankrupt until after his/her discharge). In exceptional circumstances, the bankrupt could make a representation to the official receiver as to why they should be allowed to keep some (if not all) of the after-acquired property. The official receiver is under a legal duty to maximise the potential recovery for the bankrupt s unsecured creditors..

6 Number 3043, 8 October Automatic discharge from bankruptcy Under section 279(1) of the IA 1986, most bankrupts are automatically discharged from bankruptcy 12 months after the making of the bankruptcy order, even if no payments have yet been made to creditors. 4 The automatic discharge period was reduced from 3 years to 1 year by the EA The aim being to: After 1 year, most bankrupts are automatically discharged from bankruptcy. remove the stigma of bankruptcy; give bankrupts the opportunity of prompt rehabilitation in relation to their financial affairs; and encourage entrepreneurs to try again A bankrupt cannot make an application to the court for discharge earlier than the 12 months automatic discharge period. However, if there are sufficient grounds, the bankrupt could apply to the court for an annulment of the bankruptcy order (see Box 2 below). Box 2: Annulment of a bankruptcy order The bankrupt can apply for an annulment at any time if: What is the annulment of a bankruptcy order? It is a procedure that cancels a bankruptcy order. An order of annulment can only be made by the court. the bankruptcy order should not have been made (for example, because the proper steps were not taken when obtaining the order); all bankruptcy debts and the fees and expenses of the bankruptcy proceedings have been either paid in full or secured (i.e. guaranteed) to the satisfaction of the court; or the bankrupt has reached an agreement (called an Individual Voluntary Arrangement or IVA) with his/her creditors to repay all or part of their debts The bankrupt does not have to do anything to obtain automatic discharge; no formal application or court hearing is necessary for discharge to be granted. On the one year anniversary date of the bankruptcy order, the individual is simply discharged from bankruptcy. When a bankrupt is discharged he/she is generally no longer bound by the restrictions placed on them by the bankruptcy order unless they are subject to a Bankruptcy Restrictions Order (BRO) or undertaking (see below). Bankruptcy Restriction Orders or Undertakings Discharge also releases the bankrupt from the debts they owed at the date of the bankruptcy order with certain exceptions relating to fraud, fines, student loans and maintenance payments. However, it is 4 The Enterprise Act 2002 introduced a new section 279 to the Insolvency Act 1986, this states that a bankrupt will generally be discharged one year from the making of the bankruptcy order where that order is made on or after 1 April 2004

7 7 Discharge from bankruptcy important to note that assets which were part of the estate during the period of the bankruptcy remain under the control of the official receiver and can be sold by him for the benefit of the creditors - even after discharge (although there are specific conditions relating to the bankrupt s family home, see below).

8 Number 3043, 8 October Proof of discharge Discharge from bankruptcy will happen automatically, and in most cases a certificate is not necessary. If a person needs proof of discharge, they may request a certificate of discharge from the court that dealt with the bankruptcy, a fee will be payable (see Box 3 below). Certificate of discharge Details of the discharge will also be entered on the Insolvency Register for 3 months (from the date of discharge). Another option would be for the bankrupt to simply print this entry off as proof that they have been discharged. Box 3: A Certificate of Discharge To apply to the court for a certificate, the discharged bankrupt should: write to the court two weeks before their discharge date give their name, address and court number (this can be found on any letters from the court about the bankruptcy) enclose the court fee (currently 70) and specify how many certified copies they require (the current fee is 5 per copy) In certain circumstances, it may be possible for the fee to be waivered (the advice of the court should be sought). A certificate of discharge is usually issued within about four weeks. Alternatively, the bankrupt could write to the official receiver s office that dealt with their bankruptcy to ask for a letter confirming his/her date of discharge. There is usually no charge for this.

9 9 Discharge from bankruptcy 5. Order to suspend discharge Under the EA 2002, where a bankrupt is not complying with the requirements of bankruptcy legislation, the official receiver (or trustee in bankruptcy) can apply to the court for an order to suspend the automatic one year discharge. An application for suspension should only be made in instances where the bankrupt s conduct has adversely affected the proceedings. For example, in cases of the bankrupt s willful default or where he has failed to: submit accounts; attend meetings; or deliver-up property or provide information to the trustee The court application must be accompanied by a report by the official receiver on the bankrupt s conduct, submitted at least 21 days prior to the hearing of the application. 5 A suspension order effectively stops the clock ticking; the running of the bankrupt s automatic discharge period is suspended. Usually, the official receiver will seek suspension of discharge for a specific period or until certain conditions are met by the bankrupt (i.e. not an indefinite suspension). For example, the bankrupt s discharge may be suspended by the court until such time that the bankrupt submits accounts etc. Alternatively, a fixed-term may be appropriate in cases where the bankrupt s conduct has been unsatisfactory but the official receiver believes that the bankrupt is genuinely not (and never will be) in a position to provide proper explanations, accounts etc. When a suspension order is made by the court, it is important that the bankrupt knows what he has to do to reinstate the running of the discharge period or when the discharge will take effect. If matters subsequently improve, an application can be made to the court by the official receiver to lift the suspension order. 6 In urgent cases, the official receiver can apply to the court for an immediate interim order suspending discharge, with or without notice to the bankrupt. However, the court will only make such an order if it is satisfied that it is in the interests of creditors to do so. An interim order will run until the full hearing of the court application, by which time the bankrupt will have had the required 21 days notice of the application to suspend automatic discharge. Suspension order Interim suspension order 5 Rule of the Insolvency Rules Rule of the Insolvency Rules 1986

10 Number 3043, 8 October Bankruptcy Restrictions Orders and undertakings The EA 2002 introduced a new civil regime called Bankruptcy Restrictions Orders (BROs) and Bankruptcy Restrictions Undertakings (BRU). BROs and BRUs are a way of dealing with the minority of bankrupts who abuse the system or whose conduct has been dishonest, reckless or otherwise culpable and cover a wide variety of conduct. 6.1 Bankruptcy Restrictions Order BROs operate so as to extend the period of restrictions for a bankrupt for a minimum period of 2 years up to a maximum period of 15 years from the date the BRO or BRU was made. 7 Types of restrictions include: restrictions on obtaining credit of more than 500 without disclosing status; restrictions on trading in a name/style other than the one in which the bankruptcy order was made; and restrictions on acting as a director Breach of a BRO is a criminal offence. In addition, if a bankrupt, subject to a BRO, takes part in the management of a company without the court s permission, he/she may be held personally liable for any debts of the company that arise while he/she managed it. An application for a BRO is made in the civil court by the official receiver acting on behalf of the Secretary of State. The application must be made before the end of the one-year discharge period and must be supported by a report setting out its grounds. Evidence from interested parties and any opposition by the bankrupt must be made in an affidavit (i.e. a sworn document). Notice of a BRO hearing, with a copy of the application and report, must be served on the bankrupt at least 14 days beforehand. Ultimately, it is for the court to decide, on consideration of the official receiver s report and any evidence put before it, whether the making of a BRO against the bankrupt is justified. Actions that could be considered to be dishonest or blameworthy and contribute towards a BRO include: failing to keep or produce records that would explain a loss of money or property; giving away assets or selling them at less than their value; deliberately paying off some creditors in preference to others; failing to supply goods or services that have been paid for; carrying on a business while unable to repay debts; incurring debts with no reasonable expectation of repaying them; gambling, rash speculations or being unreasonably extravagant; causing debts to increase by neglecting business affairs; fraud or fraudulent breach of trust; and 7 This will not affect the discharge of the bankrupt s debts

11 11 Discharge from bankruptcy not co-operating with the official receiver or trustee in bankruptcy Any previous bankruptcies will also be taken into account by the court when considering a BRO case. If the court decides to make the BRO, two sealed copies of the order are sent to the Secretary of State, one of which is then sent on to the bankrupt. 8 As a general rule, where an order for suspension of discharge is in force, it is usual for a court application for a BRO to also be made; the court will expect the matters giving rise to the suspension order to be dealt with by a BRO. 6.2 Interim Bankruptcy Restrictions Order The court can make an Interim Bankruptcy Restrictions Order (IBRO) (pending a full BRO) but only in cases where the alleged misconduct appears to be so serious that it is considered to be in the public interest that there is urgent and continuous protection from the individual in question. An application for an IBRO must be supported by a report setting out its grounds; any relevant evidence from interested parties can be submitted to the court by affidavit. Notice of the IBRO hearing, with a copy of the application and report, must be served on the bankrupt 2 days beforehand. An IBRO may be removed on an application by the bankrupt giving 7 days notice of the hearing to the Secretary of State with a copy of the application and affidavit evidence in support. If the court makes an order to remove the IBRO, sealed copies of the order are sent to the Secretary of State, one of which is then sent on to the bankrupt Bankruptcy Restrictions Undertaking As an alternative to a BRO, under the EA 2002, the bankrupt may consent to be bound by a BRU. The benefit of a BRU to all parties is the saving of court costs. A BRU is an agreement between the bankrupt and the official receiver that the bankrupt agrees to the extension of the restrictions until a specified date. A BRU has the same effect as a BRO, lasting for a minimum of 2 and a maximum of 15 years. The BRU, which must be in writing, takes effect when signed by both parties. A copy of the BRU is sent to the court. A BRU may be annulled on an application by the bankrupt giving 28 days notice of the hearing to the Secretary of State with a copy of the application and affidavit evidence in support. If the court annuls a BRU, two sealed copies of the order are sent to the Secretary of State, one of which is sent to the bankrupt. 10 A Bankruptcy Restrictions Undertaking is a binding agreement; it operates in the same way as a Bankruptcy Restrictions Order. 8 New rules to Rules to Rules to 6.251

12 Number 3043, 8 October The bankrupt s position after discharge 7.1 Overview Discharge from bankruptcy is a process which frees the bankrupt from the restrictions of bankruptcy and releases him/her from most of the debts they owed as at the date the bankruptcy order. After discharge the bankrupt can carry on a business without the restrictions that applied during bankruptcy. This means, for example, that the bankrupt can now: act as a director of a limited liability company, or be involved in its management (unless the bankrupt is subject to a separate disqualification order) obtain credit without having to mention their bankruptcy (unless they are specifically asked to do so) However, discharge from bankruptcy does not release the bankrupt from the following debts: any money owed under family court proceedings (e.g. maintenance) or arising from any personal injury claims against the bankrupt unless the court directs otherwise; any court fines or debts arising from fraud or certain other crimes; debts the bankrupt incurs after the bankruptcy order; since 1 September 2004, all outstanding student loads It is important to note that any assets that the official receiver claimed during the bankruptcy (i.e. the period from the date of the bankruptcy order to the date of discharge) remain under the control of the official receiver. Discharge does not prevent the official receiver from carrying out any of his remaining functions in relation to the bankrupt s estate. It may be some time before all assets comprised in the bankrupt s estate are dealt with. Furthermore, even after discharge the former bankrupt has a continuing obligation to attend on and provide information to the official receiver if required. It is also important to note that even after discharge, secured creditors (lenders who hold security such as a mortgage for their loan) still have a legal right to enforce or recover their security if payments are not made. Discharge from bankruptcy does not return ownership or control of bankruptcy assets to the bankrupt.

13 13 Discharge from bankruptcy 7.2 What happens to public records after discharge? Individual Insolvency Register The Insolvency Service s Individual Insolvency Register contains records of bankruptcy orders and Individual Voluntary Arrangements (IVAs) in England and Wales. The record of a particular bankruptcy will remain on the register for three months after the date of discharge. HM Land Registry Bankruptcy petitions and orders are registered at the Land Charges Department of HM Land Registry. These entries remain on the register for 5 years from the date of registration. Discharge from bankruptcy has no effect on this. Importantly, the official receiver can apply for entries to be renewed beyond the 5 years, for example, if the discharge has been suspended. If a bankrupt legally owns property that is registered at HM Land Registry in their sole name, a bankruptcy notice (to protect the rights of creditors) and a Bankruptcy Restrictions Notice (to prevent dealings with the property) may also have been registered against the title to the property. If, after discharge from bankruptcy, the former bankrupt s interest in the property is returned to them, the official receiver will notify the Land Registrar that the property is no longer part of the bankrupt s estate. If the property is legally registered at HM Land Registry in joint names (e.g. the bankrupt and his/her spouse), a Form J Restriction (against dealings) may have been registered against the title. Discharge from bankruptcy has no effect on this. If, however, the former bankrupt s interest in the property is returned to them, the official receiver will notify the Land Registrar to remove the restriction. Credit reference agencies The official receiver does not send any form of notice to credit reference agencies (CRAs). The agencies obtain this information from other sources such as the Register of County Court Judgments. Consequently, the bankrupt may have to provide separate information of his/her discharge from bankruptcy to the CRAs to amend their records.

14 Number 3043, 8 October What happens to the family home after discharge? In personal insolvency, the bankrupt is usually most concerned about what will happen to his/her home. In certain circumstances, section 283A of the EA 2002 will limit the time in which the official receiver (or trustee in bankruptcy) can deal with the bankrupt s home to a period of 3 years (see Box 4 below). The largest potential asset in a bankrupt s estate is usually a beneficial interest in the family home. Box 4: Application of section 283A of the EA 2002 Section 283A of the EA 2002 applies only where property comprised in the bankrupt s estate consists of an interest in a dwelling-house which at the date of the bankruptcy was the sole or principal residence of: (a) the bankrupt, (b) the bankrupt s spouse, or (c) a former spouse of the bankrupt Section 283A limits the time in which the official receiver (or trustee in bankruptcy) can deal with the bankrupt s home to a period of 3 years. If the official receiver fails to act within this 3 years period, the property will revert back to the bankrupt (i.e. it will no longer form part of the bankruptcy estate) unless the official receiver has: (a) realised the interest; or (b) applied for an order of sale or possession in respect of the premises in which the interest subsists; or (c) applied for a charging order over the premises in respect of the value of the interest; or (d) entered into an agreement with the bankrupt regarding the interest Section 283(A) of the EA 2002 came into force on 1st April For all new bankruptcy cases commenced after 1st April 2004, the 3 years period in which the trustee must deal with the bankrupt s home will begin to run from the date of the bankruptcy order. 11 If, however, the trustee is not aware of the bankrupt s interest in a property, (i.e. it was not disclosed by the bankrupt) the trustee will have three years from the date on which he/she became aware of it to deal with the interest. A separate Library briefing paper, What will happen to the bankrupt s home? provides more detailed information on this subject What happens to assets obtained after discharge? After discharge, any assets that are acquired by the bankrupt may usually be kept. 11 Under section 283A(6), the court may substitute for the period of three years a longer period in (a) prescribed circumstances, and (b) in such other circumstances as the court thinks appropriate. Alternatively, under section 283A(7) a shorter period may be specified instead of the normal three years period. 12 What will happen to the bankrupt s home?, Library briefing paper SN/HA/5178, 1 October 2015, [online] (accessed 8 October 2015)

15 15 Discharge from bankruptcy 8. How does discharge from bankruptcy differ from annulment? It is important to note that automatic discharge from bankruptcy is quite different from the annulment of a bankruptcy. As outlined above, discharge from bankruptcy releases the bankrupt from any debts covered by the bankruptcy. It also takes away the restrictions of bankruptcy, unless a Bankruptcy Restrictions Order or Bankruptcy Restrictions Undertaking has been made. In contrast, an annulment of bankruptcy is a procedure by which a court cancels the bankruptcy order it has made. This can happen if: it turns out that the bankruptcy order should not have been made; or all the bankrupt s debts and fees and expenses of the bankruptcy have been paid in full; or the creditors accept proposals for settlement under a voluntary arrangement An order of annulment can only be made by the court.

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