2010 No. BANKRUPTCY. The Protected Trust Deeds (Scotland) Amendment Regulations 2010

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1 Draft Regulations laid before the Scottish Parliament under section 72(2) of the Bankruptcy (Scotland) Act 1985 for approval by resolution of the Scottish Parliament. SCOTTISH STATUTORY INSTRUMENTS 2010 No. BANKRUPTCY The Protected Trust Deeds (Scotland) Amendment Regulations 2010 Made Coming into force - - The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 20(1) of the Bankruptcy and Diligence etc. (Scotland) Act 2007(a) and section 13(2) of the Home Owner and Debtor Protection (Scotland) Act 2010(b) and all other powers enabling them to do so. In accordance with section 72(2) of the Bankruptcy (Scotland) Act 1985(c), a draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament. Citation, commencement and extent 1. These Regulations may be cited as the Protected Trust Deeds (Scotland) Amendment Regulations 2010 and come into force on [ 2010]. Interpretation 2. (1) In these Regulations the Act means the Bankruptcy (Scotland) Act 1985; the 2008 Regulations means the Protected Trust Deeds (Scotland) Regulations 2008(d); the family home is as defined in section 40(4) of the Act(e); and trust deed is as defined in section 5(4A) of the Act(f). (2) Any reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication, as defined in the Electronic Communications Act 2000(g), which has been recorded and is consequently capable of being reproduced. (a) 2007 asp 3. Section 20(1) amends para 5 of Schedule 5 to the Bankruptcy (Scotland) Act (b) Section 13(2) amends para 5 of Schedule 5 to the Bankruptcy (Scotland) Act (c) 1985 c.66. Section 72(3)(b) is amended by section 13(1)(b) of the Home Owner and Debtor Protection (Scotland) Act (d) SSI 2008/143. (e) Section 40(4) was amended by section 10 of the Home Owner and Debtor Protection (Scotland) Act (f) Section 5(4A) was amended by section 10 of the Home Owner and Debtor Protection (Scotland) Act (g) 2000 c.7. Section 15 of the Electronic Communication Act 2000 (c.7) contains a definition of electronic communication. B

2 (3) Any reference in these Regulations to a regulation or a schedule shall be a reference to a regulation of or a schedule to the 2008 Regulations. Amendment of the 2008 Regulations 3. The 2008 Regulations shall be amended in terms of regulations 4 to 11 of these Regulations. Amendment of regulation 3 4. In regulation 3 insert as a protected trust deed after recorded and before by. Amendment of regulation 6 5. (1) For regulation 6(1) substitute (1) The trust deed must state (a) that subject to paragraph (3), all the debtor s estate (other than property listed in section 33(1) of the Act or which would be excluded from vesting in a trustee of a sequestrated estate under any other provision of that Act or other enactment or which in terms of the trust deed is stated as not to be conveyed to the trustee) is conveyed to the trustee; and (b) details of any creditor to be excluded from the trust deed in terms of section 5(4A)(b)(i) of the Act; details of the debt to be excluded, and that any excluded creditor has consented, subject to the trust deed being acceded to by the notified creditors in terms of regulation 9(2), to be excluded from voting in respect of the trust deed and drawing a dividend.. (2) After regulation 6(2) insert (3) Notwithstanding paragraph (1), the family home of the debtor is presumed not to be conveyed in terms of the trust deed to the trustee unless the trust deed states that it is included in the trust deed. (4) Where it is proposed that a creditor in terms of section 5(4A)(b)(i) of the Act is to be excluded from a trust deed in respect of any debt, the creditor must, before the trust deed is entered into, consent in terms of the form of Form 1A set out in Schedule 1 to these Regulations, subject to the trust deed being acceded to by the notified creditors in terms of regulation 9(2), to be excluded in respect of any debt. (5) Where a creditor is excluded in respect of any debt, the creditor shall not be discharged in respect of the debt by a protected trust deed not shall the creditor, unless the creditor has agreed to the contrary, be precluded from petitioning for the sequestration of the debtor.. Recording in Register of Insolvencies 6. For regulation 7 substitute Recording in the Register of Insolvencies 7. (1) Forthwith after the trust deed has been delivered to the trustee, he or she must send to the Accountant (a) a copy of the trust deed; (b) a copy of the signed statement referred to in regulation 6(2)); and (c) a copy of the notice of trust deed in the form of Form 2A set out in Schedule 1 to these Regulations. (2) On receipt of the documents listed in paragraph (1), the Accountant must forthwith record the trust deed and the notice of trust deed referred to in regulation 7(1)(c) in the Register of Insolvencies.. B

3 Amendment of regulation 8 7. Regulation 8 is amended as follows (a) for of publication of the notice referred to in regulation 7 substitute on which the notice referred to in regulation 7(1)(c) is recorded in the Register of Insolvencies; and (b) after sub-paragraph (viii) insert (ix) a statement by the trustee of the existence of any trust deed terminated by the debtor in the 6 month period preceding the date of the current trust deed.. Amendment of regulation 9 8. For regulation 9 substitute Accession by creditors to the trust deed 9. (1) The trust deed must be acceded to by the notified creditors (other than any excluded creditor). (2) The trust deed will be deemed to be acceded to by the notified creditors, unless within the relevant period the trustee has received notification in writing from a majority in number or not less than one third in value of those creditors that they object to the trust deed. (3) Where notified creditors do not accede to the trust deed in terms of paragraph (1) the debtor may terminate the trust deed in a written letter to the trustee. (4) A letter of termination in terms of sub-paragraph (3) does not discharge the debtor from any debts and obligations under the trust deed. (5) On receiving termination in writing from the debtor, the trustee will (a) notify the creditors in writing that the trust deed has been terminated and that the trustee shall be deemed to have been discharged by the creditors; and (b) send a copy of the written notification referred to in sub-paragraph (5)(a) to the Accountant. (6) The termination of the trust deed will not affect the entitlement of the trustee under regulation 18 to remuneration for work done in administering a trust deed.. Amendment of regulation For regulation 10 substitute Registration of protected status 10. As soon as reasonably practicable after the expiry of the relevant period, the trustee must send to the Accountant for registration in the Register of Insolvencies (a) a copy of the consent form referred to in regulation 6(4); (b) a statement by the trustee that those creditors, if any, who have objected in writing to the trust deed during the relevant period do not constitute (i) a majority in number of the creditors; or (ii) one third or greater in value of the creditors; (c) a copy of the statement of the debtor s affairs referred to in regulation 8(c); and (d) a statement in the form of Form 3 set out in Schedule 1 to these Regulations of anticipated realisations from the protected trust deed, and the Accountant shall forthwith record the trust deed as a protected trust deed in the Register of Insolvencies.. B

4 Amendment of regulation In regulation 19 after paragraph (1) insert (1A) A refusal by the debtor to consent to the sale of his or her family home will not be deemed to be a failure to meet his or her obligations for the purpose of regulation 19(1).. Amendment of Schedule In Schedule 1 (a) revoke Form 1 (notice in Edinburgh Gazette by trustee under a trust deed for the benefit of creditors); (b) insert as new Form 1A (consent of creditors to be excluded from a trust deed) the form set out in Schedule 1 to these Regulations; and (c) insert as new Form 2A (notice of trust deed) the form set out in Schedule 2 to these Regulations. Transitional 12. These regulations apply in respect only of trust deeds entered into after the coming into force of these Regulations. St Andrew s House, Edinburgh 2010 Authorised to sign by the Scottish Ministers SCHEDULE 1 Regulation 5 FORM 1A Consent of Creditor to be excluded from a Trust Deed Part 1 (to be completed by debtor or prospective trustee) Creditor s details Insert creditor s name Insert creditor s address Town County Postcode B

5 Particulars of debt Amount (see note 5 overleaf) Description Reference Debtor s details Insert debtor s name Insert debtor s address Town County Postcode Details of projected realisations from Protected Trust Deed Part 2 (to be completed by Creditor) I consent as a creditor of the debtor that the above described debt shall not participate in any trust deed entered into by the debtor in terms of the draft trust deed attached provided it achieves protected status. I understand that if the debt is excluded from the trust deed my rights to recover the specified debt are not affected nor, subject to any agreement to the contrary, my right to petition for the sequestration of the debtor; the terms of repayment of the debt are not affected, and I will not vote in respect of any trust deed entered into by the debtor in terms of the draft trust deed attached nor receive a dividend under the trust deed and that the discharge of the debtor in terms of the trust deed shall not discharge the above described debt. This consent will expire on a trust deed in terms of the draft deed being entered into by the debtor and achieving protected status or within 3 months of today s date, whichever is earlier. Signed (excluded creditor) Date Signed (Creditor/creditor s authorised representative) Date. B

6 SCHEDULE 2 Regulation 5 FORM 2A NOTICE OF TRUST DEED B

7 EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations amend the Protected Trust Deeds (Scotland) Regulations 2008 to implement changes entailed in relation to trust deeds in consequence of the provisions in section 10 of the Home Owner and Debtor Protection (Scotland) Act Section 10 of that Act amended the definition of trust deed in section 5(4A) of the 1985 Act, so that a trust deed could become protected even if the family home of the debtor was not comprised in the assets of the debtor which are conveyed to the trustee. At present all the debtor s assets must be conveyed except property listed in section 33(1) of the 1985 Act or which would be excluded from vesting in a trustee of a sequestrated estate under any other provision of that Act or other enactment. The amendment of the definition of trust deed in section 5(4A) of the 1985 Act also allows Scottish Ministers to prescribe further classes of asset that may be excluded, but at present no further class of asset is prescribed. The exclusion of the family home in a protected trust deed remains subject to creditors agreeing to the terms of the trust deed according to the statutory majorities, namely that those creditors, if any, who have objected in writing to the trust deed during the relevant period do not constitute (i) a majority in number of the creditors; or (ii) one third or greater in value of the creditors. Section 10 of the Home Owner and Debtor Protection (Scotland) Act 2010 also amended section 5(4A) of the 1985 Act to allow a creditor to be allowed not to participate in a protected trust deed. At present certain debts are by statute excluded like student loans. Where they are excluded by statute the creditor is not discharged from his or her debt but in turn does not vote in respect of the trust deed as to whether it is protected, does not draw a dividend and remains entitled to sequestrate the debtor irrespective of the protected trust deed if the grounds are open. The amendment of section 5(4A) of the 1985 Act follows this model with the additional provision that any such exclusion must be with the prior consent of the creditor who is to be excluded and again subject to creditors agreeing to the terms of the trust deed according to the statutory majorities, but with the excluded creditor not entitled to vote. This arrangement does not entitle any creditor to opt out of the protected trust deed. These changes to the definition of trust deed introducing more flexibility to protected trust deeds are reflected in the regulations as follows. Regulation 4 amends regulation 3 of the 2008 Regulations to the effect that a trust deed becomes a protected trust deed after it is registered as such in the Register of Insolvencies. At present there is only one recording of the trust deed which is after creditors have acceded to it. The amendment to regulation 7 of the 2008 regulations effected by regulation 5 of these Regulations prescribes a recording at an earlier stage and therefore there is need to differentiate between that recording and the later one after creditors have acceded to the trust deed. Regulation 5 amends the statement of the debtor and creditor prescribed by regulation 6(1)(a) of the 2008 Regulations, so that it affirms that the trust deed states: (a) that the trust deed is to convey all the property of the debtor to the trustee other than property excluded by statute (as at present) and property excluded by the terms of the trust deed (new); and (b) details of any creditor to be excluded and of the debt and of creditor s consent to be excluded and how that exclusion is contingent on the trust deed becoming protected, and how exclusion would preclude the creditor from voting in respect of the trust deed achieving protected status and drawing a dividend. Secondly regulation 5 amends regulation 6 of the 2008 Regulations to add a paragraph (3) to the effect that there is a presumption that a family home of the debtor is excluded from the trust deed unless it is expressly included in terms of the trust deed. Secondly it amends regulation 6 of the 2008 Regulations to add a paragraph (4) to the effect any creditor to be excluded in respect of any debt must sign a consent Form as set out in the Schedule 1 to the these Regulations and added as a new form to those set out in the 2008 Regulations. The prescribed form in the Schedule sets out the basis on which the consent is given, namely that it is contingent on the trust deed becoming B

8 protected and the excluded creditor has the figures for the projected realisations. Because it is envisaged that the consent will be given prior to the trust deed being entered into, the consent is given on the basis of a draft form in terms of the trust deed to be entered into. Regulation 6 amends regulation 7 of the 2008 Regulations, so that the trust deed documentation is now recorded in the Register of Insolvencies as soon as the trust deed is entered into. Regulation 9 amends regulation 10 of the 2008 Regulations, to the effect that where the conditions for a trust deed achieving protected trust deed status are fulfilled the documentation is to be recorded in the Register of Regulation 9 amends regulation 10 of the 2008 Regulations, to the effect that where the conditions for a trust deed achieving protected trust deed status are fulfilled the documentation is to be recorded in the Register of Insolvencies by the Accountant in Bankruptcy, from which time the trust deed is protected.. B

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