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The Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2015

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Scottish Statutory Instruments

2015 No. 80

Insolvency

Bankruptcy

The Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2015

Made

25th February 2015

Laid before the Scottish Parliament

27th February 2015

Coming into force

1st April 2015

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 1A(1)(b) and (5), 2(8), 5(2ZA)(a)(ii), (2D) and (6A), 6(7), 7(1)(d), 11(1), 19(2), 22(2)(a) and (6), 23(1)(a), 32(9A), 40(3B), 43A(2), 43B(1), 45(3)(a), 49(3), 51(7)(a), 54(2), 54A(2), 54C(2), 54D(2)(a) and (c), 54E(2) and (5), 69, 69A, 71C, 72(1A), 72A and 73(1) of and paragraphs 5(1) and 6 of Schedule 3 to the Bankruptcy (Scotland) Act 1985(1) and all other powers enabling them to do so.

Citation and commencement

1.  These Regulations may be cited as the Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2015 and come into force on 1st April 2015.

Amendment of the Bankruptcy (Scotland) Regulations 2014

2.—(1) The Bankruptcy (Scotland) Regulations 2014(2) are amended in accordance with this regulation.

(2) In regulation 19 (certificate of deferral) after “section 54D(4)(b) or (6)(b)” insert “of the 1985 Act”.

(3) In regulation 24 (sequestration before 1st April 2015)—

(a)in paragraph (1)(a)(ii) for “was” substitute “is”; and

(b)after paragraph (2)(b) insert—

(c)regulation 15 of these Regulations and Form 26(3);

(d)regulation 22 of these Regulations and Forms 29 and 30(4)..

(4) After regulation 24 insert—

Trust deed granted before 1st April 2015

25.  These Regulations, except regulation 22 and Forms 29 and 30, have no effect as regards any trust deed granted before 1st April 2015..

(5) In Schedule 1 (forms)—

(a)for each form listed in the table in Schedule 1 to these Regulations substitute the Form so numbered in Schedule 1 to these Regulations;

(b)in Form 11 (application for deferral)—

(i)for “I confirm;” substitute “I confirm that”; and

(ii)for “section 3 of the Bankruptcy (Scotland) Act 1985 (as amended).” substitute “section 3 of the Bankruptcy (Scotland) Act 1985 (as amended);”;

(c)in Form 12 (trustee application for authority to resign office) for “section 54E(4) of the Bankruptcy (Scotland) Act (as amended)” substitute “section 54E(4) of the Bankruptcy (Scotland) Act 1985 (as amended)”;

(d)in Form 14 (debtor application)—

(i)in section 3.1 for “will considered” substitute “will be considered”;

(ii)in section 3.6 for “If “YES” is the Charge for Payment dates at least 15 days prior to you completing, signing and dating this application?” substitute “If “YES” is the date on which the Charge for Payment was served on you at least 15/29* (*delete as appropriate) days prior to you completing, signing and dating this application?”;

(iii)in section 3.7 for “If “YES” is the Statutory Demand dated at least 22 days prior to you completing, signing and dating this application?” substitute “If “YES” is the date on which the Statutory Demand was served on you at least 22 days prior to you completing, signing and dating this application?”;

(iv)in section 6.5 for “compete” substitute “complete”;

(v)in section 6.7—

(aa)for “From” substitute “from”; and

(bb)for “compete” substitute “complete”;

(vi)at the end of section 8.6 insert on a new line-

(vii)“Proposed frequency of subsequent payments _________________”;

(viii)in section 11.1 for “Do you, or have, you owned property in the last 5 years which is not your current residence?” substitute “Do you currently own property, or have you owned property in the last 5 years, which is not your current residence?”;

(ix)for the first paragraph of the Money Adviser Declaration substitute—

I am a money adviser within the meaning of the Bankruptcy (Scotland) Act 1985 (as amended). I confirm that I have provided the debtor named in section 5 of this form with advice in accordance with section 5C of that Act.;

(x)in the section headed “Automatic credit/HPI checks”—

(aa)for the heading substitute “Credit/HPI checks”;

(bb)for “will carry out automatic” substitute “may carry out”; and

(cc)“will carry out these checks in all” substitute “may carry out these checks in some”;

(xi)in the Statement of Undertakings—

(aa)in undertaking 2 for “an interest in on” substitute “an interest on”;

(bb)in undertaking 6 for “my bankruptcy” substitute “my bankruptcy.”;

(cc)after undertaking 15 insert on a new line—

(dd)Note for completion – If you are signing as executor, or entitled to be appointed as executor, on the estate of a deceased debtor, undertakings 1, 7, 8, 10, 14 and 15 do not apply. You are giving the remaining undertakings, as appropriate, in relation to the position of the deceased debtor or the deceased debtor’s estate or the position of executor on the estate of the deceased debtor.”; and

(xii)in the Statement of Truth after “I have read and understood the warning below.” insert on a new line—

(aa)Note for completion – If you are signing as executor, or entitled to be appointed as executor, on the estate of a deceased debtor, you are agreeing and certifying in relation to the estate of the deceased debtor being made bankrupt. In relation to the warning below, the reference to bankruptcy restrictions does not apply.”;

(e)in Form 15 (debtor application (trust, partnership, etc.))—

(i)for the heading “Section 4 – Concurring Creditor” substitute “Section 4 – Concurring Creditor (if applicable)”; and

(ii)in section 4.4 for “petition” substitute “application”; and

(f)in Form 26 (notice by trustee of proceedings to obtain authority in relation to debtor’s family home) for “40(1)(b)” substitute “40(2) or (3)”.

(6) In Schedule 2 (register of insolvencies), in section E (winding up and receivership of business associations) after “Date of appointment of office holder(s)” insert on a new line “Date of termination of appointment of office holder(s)”.

Amendment of the Bankruptcy (Applications and Decisions) (Scotland) Regulations 2014

3.—(1) The Bankruptcy (Applications and Decisions) (Scotland) Regulations 2014(5) are amended in accordance with this regulation.

(2) After regulation 2 insert—

Dispensing power

2A.  The Accountant may relieve any person from the consequences of any failure to comply with a provision of these Regulations that is shown to be due to mistake, oversight or other reasonable cause..

(3) In regulations 3(1) and 5(1), for “Form” substitute “form”.

(4) In regulation 4(1)(h), for “bankruptcy” substitute “Bankruptcy”.

(5) In regulation 5(2)(a)(iii) (procedure for first instance applications to AiB), for “able to review or appeal” substitute “able to seek review of or to appeal”.

(6) In regulation 19 (reference to the sheriff: time limits)—

(a)for “refer or remit a matter to the sheriff” substitute “refer or remit a matter to the court”;

(b)in paragraph (a)—

(i)for “the sheriff” the first time it occurs substitute “the court”;

(ii)for “the sheriff” the second time it occurs substitute “that court”; and

(c)in paragraph (b) for “sheriff’s (or the court’s) disposal” substitute “court’s disposal”,

and in the title of Part 4 (Reference to sheriff and review by Accountant in Bankruptcy) and the heading to regulation 19, for “sheriff” substitute “court”.

(7) After regulation 21, insert—

Review proceedings: persons assisting the Accountant in Bankruptcy

21A.(1) In relation to a review application the Accountant may take account of the views of any independent person whom the Accountant appoints for that purpose.

(2) The Accountant may disclose information held about review applications to persons appointed under paragraph (1) to be used only for the purpose specified in that paragraph..

(8) In the Schedule—

(a)for Form 4 (report of statutory meeting appointing replacement trustee) substitute the Form 4 set out in Schedule 2 to these Regulations;

(b)in Form 5 (grant of removal of trustee), for “may” substitute “must”; and

(c)in Form 6 (conversion of protected trust deed into bankruptcy: section 59A application)—

(i)in the third box below “Trustee Address:”, insert—

I consent to my appointment as Trustee

Signature of Trustee _______________________ Date ___________________; and

(ii)for “EC Regulation of earlier proceedings” substitute “EC Regulation (conversion of earlier proceedings)”.

Amendment of the Bankruptcy Fees (Scotland) Regulations 2014

4.  In regulation 13 (sequestrations and trust deeds before 1st April 2015) of the Bankruptcy Fees (Scotland) Regulations 2014(6)—

(a)in paragraph (1)(b) for “was” substitute “is”; and

(b)for paragraph (4) substitute—

(4) This regulation does not apply in respect of—

(a)items 18, 20 and 21 in Part 2 in the table of fees; or

(b)the revocation of items 10, 11, 12 and 13 in Part 2 of the Table of Fees in Schedule 1 to the Bankruptcy Fees etc. (Scotland) Regulations 2012(7)..

FERGUS EWING

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

25th February 2015

Regulation 2(5)(a)

SCHEDULE 1Bankruptcy (Scotland) Regulations 2014 - Forms

List of Forms to be substituted

FormPurpose
4

Statement of Assets and Liabilities

Petition by creditor or trustee under a trust deed

5Statement of Claim by Creditor
7Debtor Certificate of Discharge (where The Accountant in Bankruptcy is not the trustee)
8Debtor Certificate of Discharge (where The Accountant in Bankruptcy is not the trustee)
9Debtor Certificate of Discharge (debtor to whom section 5(2ZA) applies)
10Deferral Notice
16Statement of Assets and Liabilities (Trusts, Partnerships etc.)
17Form of Undertaking to act as Trustee in Sequestration on the Application of a Debtor
22Notice of Abandonment of Heritable Property by Trustee in Sequestration where the Accountant in Bankruptcy is not the Trustee
23Notice of Abandonment of Heritable Property where the Accountant in Bankruptcy is the Trustee
29Moratorium – Notice of Intention to Apply

Regulation 3(8)(a)

SCHEDULE 2Bankruptcy (Applications and Decisions) (Scotland) Regulations 2014 - Form 4

FORM 4Report of statutory meeting appointing replacement trustee: section 25(2)(a)

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make miscellaneous amendments to the Bankruptcy (Scotland) Regulations 2014 (“the Bankruptcy Regulations”), the Bankruptcy (Applications and Decisions) (Scotland) Regulations 2014 (“the Applications and Decisions Regulations”) and the Bankruptcy Fees (Scotland) Regulations 2014 (“the Fees Regulations”). These form part of the measures to implement the Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11) and come into force on 1st April 2015.

Regulation 24 (sequestration before 1st April 2015) of the Bankruptcy Regulations provides that those Regulations do not apply to sequestrations where a creditor petition for sequestration is presented to court or a debtor application for sequestration is received by the Accountant in Bankruptcy (“AIB”) before 1st April 2015, subject to exceptions. Regulation 2(3) of these Regulations adjusts these provisions to make the drafting of regulation 24(1)(a)(ii) consistent with regulation 24(1)(a)(i) to avoid any doubt that a different effect was intended. It also adds regulation 15 and Form 26 (notice by trustee of proceedings to obtain authority in relation to debtor’s family home) and regulation 22 (moratorium on diligence: notice of intention to apply) of the Bankruptcy Regulations to the exceptions to regulation 24.

Regulation 2(4) inserts a new regulation 25 into the Bankruptcy Regulations to provide that those Regulations do not, except for regulation 22 (moratorium on diligence: notice of intention to apply), have effect as regards any trust deed granted before 1st April 2015.

Regulation 2(5) makes minor corrections and amendments to Forms in Schedule 1 to the Bankruptcy Regulations. In particular it adapts Form 29 (moratorium – notice of intention to apply) to apply more clearly to executors and entities.

Regulation 2(6) adds an entry to section E (winding up and receivership of business associations) of Schedule 2 (register of insolvencies) to the Bankruptcy Regulations, this entry having been omitted in error.

Regulation 3(2) inserts a new regulation 2A of the Applications and Decisions Regulations to allow AIB to relieve parties of failure to comply with those Regulations (but not provisions of the Bankruptcy (Scotland) Act 1985 (“the 1985 Act”) as amended).

Regulation 3(6) amends regulation 19 of the Applications and Decisions Regulations which allows extension or waiver of statutory time limits following reference by AIB to the sheriff. That provision is amended to apply also to any reference by AIB to the Court of Session for directions in replacing a trustee in sequestrations across different sheriffdoms under section 28B(5) and (6)(a) of the 1985 Act as amended.

Regulation 3(7) inserts a new regulation 21A of the Applications and Decisions Regulations to allow AIB to appoint independent persons, including those with relevant expertise, to assist AIB in relation to review applications.

Regulation 3(8)(a) and Schedule 2 replace Form 4 of the Applications and Decisions Regulations to clarify when it applies and add the name of the replacement trustee.

Regulation 4 amends savings arrangements for the Fees Regulations. The drafting of regulation 13(1)(b) is made consistent with regulation 13(1)(a) to avoid any doubt that a different effect was intended. A change is also made so the revocation of fees for certificates of debtor discharge, certified copies of entries in the register of insolvencies, and certifying other documents and copies of documents, applies to sequestrations and trust deeds begun before 1st April 2015 (see regulations 13 and 14 of the Fees Regulations).

The Regulations also make other minor corrections and amendments.

(1)

1985 c.66. Sections 1, 1A, 1B, 1C and 1D were substituted for section 1 by the Bankruptcy (Scotland) Act 1993 (c.6) (“the 1993 Act”), section 1. Section 1A(1)(b) was amended by the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (“the 2007 Act”), schedule 6, the Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11) (“the 2014 Act”), section 22 and schedule 3, paragraph 3 and by S.I. 1999/1820. Section 1A(5) was inserted by the 2014 Act, section 22. Section 2(8) was inserted by the 2014 Act, section 9. Section 5(2ZA) was inserted by the 2014 Act, section 5. Section 5(2D) was inserted by the 2007 Act, section 26. Section 5(6A) was substituted by the 2007 Act, schedule 1, paragraph 4 and is applied for the purposes of section 6 by section 6(8) which was amended by the 2007 Act, section 14 and the 2014 Act, schedule 3, paragraph 6. Section 7(1) was amended by the Criminal Justice (Scotland) Act 1987 (c.41), section 45, the Criminal Justice Act 1988 (c.33), Schedule 15, paragraph 108, the Drug Trafficking Act 1994 (c.37), Schedule 1, paragraph 10 and Schedule 3, the Proceeds of Crime Act 2002 (c.29), Schedule 11, paragraph 15, the 2007 Act, schedule 6, the 2014 Act, schedule 3, paragraph 7 and by S.I. 2003/2109 and S.S.I. 2011/141. Section 11(1) was amended by the 2007 Act, schedule 1, paragraph 9. Section 19 was substituted by the 1993 Act, Schedule 1, paragraph 7 and section 19(2) was amended by the 2007 Act, schedule 1, paragraph 17 and schedule 6. Section 22(2) was amended by the 2007 Act, schedule 6. Section 22(2)(a) is applied, with modifications, for the purposes of section 48 by section 48(3) which was amended by the 2007 Act, schedule 6. Section 22(6) is applied, with modifications, for the purposes of section 48 by section 48(7) which was amended by the 2007 Act, schedule 6 and the 2014 Act, schedule 3, paragraph 24. Section 23(1) was amended by the 2007 Act, schedule 6. Section 32(9A) was inserted by the 2007 Act, section 19. Section 40(3B) was inserted by the Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6) (“the 2010 Act”), section 11. Section 43A was inserted by the 2007 Act, section 30 and was amended by the 2014 Act, schedule 3, paragraph 22. Section 43B was inserted by the 2014 Act, section 2. Section 45(3) was amended by the 2007 Act, schedule 6 and the 2014 Act, section 24. Section 49(3) was amended by the 2007 Act, schedule 6. Sections 54 and 54A were substituted for section 54 by the 2014 Act, section 17. Section 54C was inserted by the 2014 Act, section 7. Sections 54D and 54E were inserted by the 2014 Act, section 19. Section 69 was amended by the 2007 Act, schedule 1, paragraph 58 and schedule 6. Section 69A was inserted by section 8 of the 1993 Act. Section 71C was inserted by the 2014 Act, section 36. Section 72(1A) was inserted by the 2014 Act, schedule 3, paragraph 34(a). Section 72A was inserted by paragraph 28 of Schedule 1 to the 1993 Act. The definition of “statement of assets and liabilities” was inserted into section 73(1) by the 1993 Act, Schedule 1, paragraph 29. Section 73(1) contains a definition of “prescribed” relevant to the exercise of the statutory powers under which these Regulations are made. The functions of the Secretary of State so far as exercisable within devolved competence were transferred to the Scottish Ministers by section 53 of the Scotland Act 1998 (c.46).

(3)

Form 26 (notice by trustee of proceedings to obtain authority in relation to debtor’s family home) is the form prescribed under section 40(3B) of the Bankruptcy (Scotland) Act 1985 (c.66) (“the 1985 Act”). Section 40 of the 1985 Act was amended by the Civil Partnership Act 2004 (c.33), Schedule 28, paragraph 36, the 2007 Act, schedule 1, paragraph 36 and schedule 6, the 2010 Act, section 11 and the 2014 Act, section 49.

(4)

Form 29 (moratorium - notice of intention to apply) is the written notice to be given by a person under section 4A(1) of the 1985 Act. Form 30 (moratorium - notice of intention to apply (trust, partnership etc.)) is the written notice to be given by a person under section 4B(1) of the 1985 Act. Sections 4A and 4B were inserted by the 2014 Act, section 8.

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