The Bankruptcy (Scotland) Regulations 2014
Citation and commencement1.
These Regulations may be cited as the Bankruptcy (Scotland) Regulations 2014 and come into force on 1st April 2015.
Interpretation2.
(1)
In these Regulations, “the 1985 Act” means the Bankruptcy (Scotland) Act 1985.
(2)
Forms
Forms3.
(1)
The forms set out in Schedule 1 to these Regulations are the forms referred to in regulations 5, 12 to 16, 19, 22 and 24, failing which they are prescribed for the purposes of the provisions of the 1985 Act referred to in the form.
(2)
A form may differ from the form set out in Schedule 1 if it is of substantially the same effect or contains such variation as the circumstances may require.
(3)
Any signature required as shown on a form set out in Schedule 1 must be provided either by—
(a)
a manuscript signature; or
(b)
an image of a manuscript signature sent electronically.
Register of Insolvencies
Register of Insolvencies4.
(1)
(2)
Information need not be included in the register of insolvencies where the Accountant in Bankruptcy is of the opinion that inclusion of the information would be likely to put any person at risk of violence or otherwise jeopardise the safety or welfare of any person.
Sequestration Process
Debtor applications5.
(1)
A debtor application to the Accountant in Bankruptcy—
(a)
in the case of an application by a living debtor, or by the executor (or a person entitled to be appointed executor) on the estate of a deceased debtor, must be in Form 14;
(b)
in the case of an application by an entity referred to in section 6(1) of the 1985 Act, must be in Form 15 accompanied by a statement of assets and liabilities in Form 16.
(2)
Where in a debtor application the debtor nominates an insolvency practitioner to act as the trustee in the sequestration and the insolvency practitioner agrees to act, the application must be accompanied by the insolvency practitioner’s written undertaking to act as the trustee in Form 17.
(3)
The Accountant in Bankruptcy or Depute Accountant in Bankruptcy must daily sign a Schedule in Form 18 listing those debtors whose estates have been sequestrated that day, and must enter the Schedule into the register of insolvencies.
(4)
The Accountant in Bankruptcy must notify in writing debtors in respect of whom an award of sequestration has been made without delay after the award of sequestration.
(5)
Where the Accountant in Bankruptcy refuses to award sequestration, the Accountant in Bankruptcy or Depute Accountant in Bankruptcy must complete and sign a Form 19 in respect of the debtor and without delay send a copy to the applicant, or applicants, in the debtor application.
(6)
(7)
Sequestration where debtor has few assets (“Minimal Asset Process”): prescribed payments6.
(1)
(2)
Where the debtor has no other income (than from any of these payments) at the date of making his or her debtor application—
(a)
(b)
(c)
(d)
(e)
(f)
Debt advice and information package7.
(1)
(2)
Application of the 1985 Act to limited partnerships8.
(1)
The application of the 1985 Act to the sequestration of the estate of a limited partnership is subject to the modifications specified in this regulation.
(2)
Any reference in the 1985 Act or in legislation made under that Act (unless the context suggests otherwise) to a partnership (other than in section 6(1)) or to a firm shall be construed as including a reference to a limited partnership.
(3)
(a)
the Accountant in Bankruptcy has jurisdiction if a limited partnership is registered in Scotland and has a place of business in Scotland; and
(b)
the sheriff has jurisdiction if a limited partnership is registered in Scotland and has a place of business within the sheriff’s sheriffdom.
(4)
(5)
Apparent Insolvency/Creditor Debt Threshold9.
Claims in foreign currency10.
(a)
where the claim is constituted by decree or other order made by a court ordering the debtor to pay to the creditor a sum expressed in a foreign currency; or
(b)
Conversion of foreign currency claims11.
Trustee resignation application12.
Abandonment of heritable property by trustee13.
(1)
(2)
Where a trustee, being the Accountant in Bankruptcy, abandons any heritable property in the circumstances referred to in paragraph (1), notice of abandonment must be in Form 23.
(3)
(4)
Debtor contribution orders14.
(1)
(2)
A debtor contribution order under section 32A(1)(b) of the 1985 Act must be in Form 25.
Notice by trustee of proceedings to obtain authority in relation to debtor’s family home15.
Debtor’s requirement to give account of state of affairs16.
Financial education17.
(a)
(b)
all of the sections of that Module except for any section where the debtor’s circumstances indicate the debtor does not require financial education on the topic of that section, in relation to any of the following topics—
(i)
budgeting and financial planning;
(ii)
saving;
(iii)
borrowing;
(iv)
insurance;
(v)
tax;
(vi)
financial life stages (financial considerations in relation to renting or buying a home, having a baby and loss of employment);
(vii)
welfare benefits.
Interest on claims in sequestration18.
Certificate of deferral19.
Premium of bond of caution20.
Preference for remuneration of employees, etc.21.
Moratorium on diligence
Moratorium on diligence: notice of intention to apply22.
(1)
(2)
Revocations and sequestration before 1st April 2015
Revocations23.
The following provisions are revoked, subject to regulation 24—
(a)
(b)
(c)
Sequestration before 1st April 201524.
(1)
Except as mentioned in paragraph (2)—
(a)
these Regulations have no effect as regards any sequestration in respect of which—
(i)
the petition is presented before 1st April 2015; or
(ii)
a debtor application was made before that date; and
(b)
the Regulations revoked by regulation 23, as in force immediately before 1st April 2015, continue to apply and have effect in relation to any such sequestration.
(2)
Paragraph (1) does not apply to—
(a)
(b)
regulation 4 of, and Schedule 2 to, these Regulations.
(3)
Notwithstanding paragraph (2)(b), no requirement for the register of insolvencies to contain particulars is to require the particulars of any event which occurred before 1st April 2015 to be contained in the register.
St Andrew’s House,
Edinburgh
SCHEDULE 1FORMS
LIST OF FORMS TO BE USED
Form | Purpose | Relevant provision of the Regulations |
|---|---|---|
1 | Statement of Undertakings | Regulation 3 |
2 | Statutory Demand for Payment of Debt | Regulation 3 |
3 | Oath By Creditor | Regulation 3 |
4 | Statement of Assets and Liabilities Petition by creditor or trustee under a trust deed | Regulation 3 |
5 | Statement of Claim by Creditor | Regulation 3 |
6 | Notice by Trustee: Public Examination of the Debtor or a Relevant Person | Regulation 3 |
7 | Debtor Certificate of Discharge (where The Accountant in Bankruptcy is not the trustee) | Regulation 3 |
8 | Debtor Certificate of Discharge (where The Accountant in Bankruptcy is not the trustee) | Regulation 3 |
9 | Debtor Certificate of Discharge (debtor to whom section 5(2ZA) applies) | Regulation 3 |
10 | Deferral Notice | Regulation 3 |
11 | Application for Deferral | Regulation 3 |
12 | Trustee Application for Authority to Resign Office: debtor not traced | Regulation 3 |
13 | Notice granting Trustee Authority to Resign Office | Regulation 3 |
14 | Debtor Application | Regulation 5 |
15 | Debtor Application (Trust, Partnership etc.) | Regulation 5 |
16 | Statement of Assets and Liabilities (Trusts, Partnerships etc.) | Regulation 5 |
17 | Form of Undertaking to act as Trustee in Sequestration on the Application of a Debtor | Regulation 5 |
18 | Form of Schedule of Award of Sequestration on Application by Debtor or Executor | Regulation 5 |
19 | Form of Refusal of Award of Sequestration | Regulation 5 |
20 | Notice of Award of Sequestration to the Keeper of the Registers of Scotland | Regulation 5 |
21 | Trustee Application for Authority to Resign Office as Trustee in Sequestration | Regulation 12 |
22 | Notice of Abandonment of Heritable Property by Trustee in Sequestration where the Accountant in Bankruptcy is not the Trustee | Regulation 13 |
23 | Notice of Abandonment of Heritable Property where the Accountant in Bankruptcy is the Trustee | Regulation 13 |
24 | Debtor Contribution Order (Debtor Application) | Regulation 14 |
25 | Debtor Contribution Order (Petition for Sequestration) | Regulation 14 |
26 | Notice by Trustee of Proceedings to Obtain Authority in Relation to Debtor’s Family Home | Regulation 15 |
27 | Debtor’s Account of Current State of Affairs | Regulation 16 |
28 | Certificate of Deferral of Discharge | Regulation 19 |
29 | Moratorium – Notice of Intention to Apply | Regulation 22 |
30 | Moratorium – Notice of Intention to Apply (Trust, Partnership, etc.) | Regulation 22 |
SCHEDULE 2REGISTER OF INSOLVENCIES
A. Moratorium
- Notice of intention to apply – moratorium on diligence47 (where applicable)
B. Sequestrations
Name of debtor
Debtor’s date of birth (where known)
Debtor’s residence and any former residence within the past 5 years and principal place of business (if any) at date of sequestration or date of death
Date of death in case of deceased debtor
Occupation of debtor
Whether sequestration awarded by sheriff or by Accountant in Bankruptcy
Date of any order converting protected trust deed to sequestration
Whether sequestration under paragraph 1 of Schedule A1 to the 1985 Act (the Minimal Asset Process (“MAP”))
Name and address of petitioner for sequestration (where applicable)
Court by which sequestration awarded (where applicable)
Date of presentation of petition (where applicable)
Date of first order (where applicable)
Date of award of sequestration
- Particulars of petition for recall of sequestration48 (where applicable)
Date of recall of sequestration (where applicable)
Name and address of trustee and date of appointment
Level of debt when trustee’s statement of debtor’s affairs is produced
Level of assets when trustee’s statement of debtor’s affairs is produced
Name and address of trustee (or replacement trustee) and date of confirmation of appointment
- Particulars of notice of public examination of debtor or relevant person49 (where applicable)
If the MAP ceases to apply
- Issue of certificate deferring debtor’s discharge indefinitely50 (where applicable)
- Particulars of any application for removal of trustee51 and any order removing trustee or declaring office vacant
Date of debtor’s discharge and whether on composition or by operation of law
- Date of trustee’s discharge52 and of any decision to grant or refuse certificate of discharge
- Period of any MAP bankruptcy credit restriction following discharge53
C. Protected trust deeds for creditors
Name and address of granter of trust deed
Granter’s date of birth (where known)
Address of the centre of main interests and all establishments, within the meaning of the Council Regulation (EC) No 1346/2000, of the granter of the trust deed, unless the granter of the trust deed is an undertaking as described in Article 1(2) of the said Council Regulation
Whether the protected trust deed is considered to be main or territorial proceedings within the meaning of the said Council Regulation
The location and nature of any other insolvency proceedings
Name and address of trustee under deed
Date (or dates) of execution of deed
Date on which copy deed and certificate of accession was registered
Date of registration of statement indicating how the estate was realised and distributed and certificate to the effect that the distribution was in accordance with the trust deed
Date of trustee’s discharge
Date of registration of copy of order of court that non-acceding creditor is not bound by trustee’s discharge
D. Bankruptcy Restrictions Orders, Interim Bankruptcy Restrictions Orders and Bankruptcy Restrictions Undertakings
Name of debtor
Debtor’s date of birth (where known)
Date of sequestration
Date of making of bankruptcy restrictions order or interim bankruptcy restrictions order
Date of acceptance of bankruptcy restrictions undertaking
Date of order varying bankruptcy restrictions order or bankruptcy restrictions undertaking (where applicable)
Date of annulment of bankruptcy restrictions order or bankruptcy restrictions undertaking (where applicable)
Date of discharge of bankruptcy restrictions undertaking (where applicable)
Date bankruptcy restrictions order, interim bankruptcy restrictions order or bankruptcy restrictions undertaking ceased to have effect
E. Winding up and receivership of business associations
Company number
Company name
Type of proceedings
Name of office holder(s)
Date of appointment of office holder(s)
Date of winding-up order (for compulsory liquidations)
Court by which company wound up
These Regulations re-enact, with modifications, the Bankruptcy (Scotland) Regulations 2008 (S.S.I. 2008/82) except for regulation 8 of those Regulations. They make provision following amendments to the Bankruptcy (Scotland) Act 1985 (“the 1985 Act”) by the Bankruptcy and Debt Advice (Scotland) Act 2014 (“the 2014 Act”).
Subject to regulation 24 (sequestration before 1st April 2015), these Regulations come into force on 1st April 2015.
Regulation 3 and Schedule 1 provide for the main forms to be used in relation to sequestration.
Regulation 4 makes provision about the register of insolvencies which it is the function of the Accountant in Bankruptcy to maintain (section 1A(1)(b) of the 1985 Act refers).
Regulation 5 makes provision in relation to debtor applications (an application made by a debtor to the Accountant in Bankruptcy for an award of sequestration under the 1985 Act).
Regulation 6 provides for “prescribed payments” of social security benefits as part for the criteria for eligibility for the Minimal Asset Process (“MAP”) where the debtor has few assets under section 5(2ZA) of the 1985 Act.
Regulation 7 makes provision in relation to the requirement in section 5(2D) of the 1985 Act for a debtor to be provided with a debt advice and information package prior to presentation of a petition for sequestration by a qualified creditor or qualified creditors of the debtor.
Regulation 8 makes modifications of the 1985 Act in its application to limited partnerships.
Regulation 9 prescribes £1,500 as the amount of debt a creditor must be owed to establish ‘apparent insolvency’ by an expired statutory demand for payment of debt in terms of section 7(1)(d) of the 1985 Act.
Regulation 10 prescribes the circumstances in which a creditor may state the amount of the creditor’s claim in foreign currency for voting purposes at a statutory meeting and submission of claims to a trustee under sections 22 and 48 of the 1985 Act respectively.
Regulation 11 prescribes the manner in which the trustee is required to convert a creditor’s claim made in foreign currency for the purposes of proceedings at a statutory meeting and the adjudication of creditors’ claims under sections 23 and 49 of the 1985 Act respectively.
Regulation 12 provides for the form of application to be completed by the trustee where the trustee seeks authority to resign office under section 28 of the 1985 Act.
Regulation 13 provides for the form of notice to be given to the debtor under section 32(9A) of the 1985 Act where the trustee has abandoned to the debtor any heritable property included in the debtor’s sequestrated estate.
Regulation 14 makes provision for form of debtor contribution orders under section 32A(1)(a) and (b) of the 1985 Act, added by the 2014 Act to replace income payment orders under section 32(2) of the 1985 Act.
Regulation 15 provides for the form of notice to be given to the local authority by the trustee or a trustee under a trust deed before proceedings are commenced for authority to sell or dispose of any right or interest in the debtor’s family home under section 40 of the 1985 Act.
Regulation 16 provides for the form of a debtor’s current state of affairs to be given under section 43A of the 1985 Act.
Regulation 17 provides for the courses of financial education which a debtor may be required to undertake by the trustee under section 43B(1) of the 1985 Act.
Regulation 18 prescribes 8% per annum as the rate of interest to be paid on the preferred debts and the ordinary debts between the date of sequestration and the date of payment of the debt for the purposes of section 51 of the 1985 Act (order of priority in distribution of the debtor’s estate).
Regulation 19 provides for the form of certificate under section 54D(4)(b) or (6)(b) deferring indefinitely the discharge of the debtor.
Regulation 20 provides that the premium of any bond of caution or other security given by an insolvency practitioner in relation to acting as interim trustee or trustee may be taken into account as part of the insolvency practitioner’s outlays in the sequestration.
Regulation 21 restates the prescription of £800 as the maximum amount which may be claimed as a preferred debt by an employee by way of remuneration or by a person under the Reserve Forces (Safeguard of Employment) Act 1985 (paragraphs 5 and 6 of Schedule 3 to the 1985 Act refer). In restating the law on reserved matters by virtue of paragraph 7 of Schedule 4 to the Scotland Act 1998 (c.46) the law as restated remains reserved law.
Regulation 22 provides for forms of notice to be given by a person for the purposes of sections 4A and 4B of the 1985 Act to trigger the moratorium on diligence having effect under sections 4C and 4D of the 1985 Act.
Regulation 23 revokes the relevant parts of S.S.I. 2008/82 and amending instruments, subject to regulation 24. These Regulations do not except as provided for in regulation 24 apply to sequestrations where the creditor petition for sequestration was presented before 1st April 2015 or the debtor application for sequestration was received by the Accountant in Bankruptcy before that date.
A Business and Regulatory Impact Assessment has been prepared for these Regulations. Copies can be obtained from the Accountant in Bankruptcy’s website: http://www.aib.gov.uk.