2.6 Conclusion of bky

Question 1

What are the grounds for ‘ought not to have been made’ annulments?

Answer 1

where it is proven after the bankruptcy order is made that

the petitioning debt is not due, or
is below the bankruptcy limit, or
there was some fatal defect in procedure, or
where no genuine COMI in E & W
abuse of process

Question 1

Who can apply to annul a bankruptcy?

Answer 1

There. is no limitation on who can apply, but in practice
 Usually the bankrupt
 The trustee or supervisor of a post-bankruptcy IVA
 A spouse or civil partner
 Other party affected by the bankruptcy

Question 2

When might recession be appropriate?

Answer 2

Where the bankruptcy was based on a judgement debt or liability order that existed at the time of the bankruptcy order, the bankruptcy order is considered valid at the time

 Therefore “ought not to have been made”does not apply

 If the judgment or liability order is later set aside, the correct route is rescission of the bankruptcy order, not annulment

NB Where a bankruptcy is rescinded, the bankruptcy existed between the date of the bankruptcy order and the date of the order for rescission

Question 3

How long before any hearing must the trustee serve notice of an application for an SOD?

Answer 3

At least 21 days on both bankrupt and OR

Question 4

How many days notice must the bankrupt give if they want to challenge or dispute SOD application?

Answer 4

At least 5 days

Question 5

What is the required amount for creditors to request a different trustee?

Answer 5

25% in value

Question 6

Final report - trustee other than OR

What are included in the contents of the notice to accompany the trustee’s final report?

Answer 6

Sent to creditors (and bankrupt ASARP thereafter):
8 weeks to object or request further info (final date will depend on resolution of any requests/ objections):

The notice must—
 be accompanied by a report of the trustee’s administration of the bankrupt’s estate;

 explain the effect of section 299(3)(d) [that the trustee will be released automatically] and how the creditors may object to the trustee’s release.

 Delivering the final report triggers the rights to
 Request further information about remuneration and expenses

 Challenge remuneration and/ or expenses as “excessive”

 Object to release (but not vacation)

Question 7

When does the trustee vacate office & notice to whom - s331 process

Answer 7

After the 8 weeks notice (and any objections etc resolved), trustee:

FILES notice (and copy of final report) AT COURT (if cr case) that has given notice under s331, and that will be released at same time as vacates office unless creditors objected

Also notice to OR & SoS

Question 8

What is release?

Answer 8

Release means the trustee is discharged from all liability both in respect of his acts or omissions in the administration of the estate and otherwise in relation to his conduct as trustee

 The exception to this is any liability under s304 (misapplication or retention of assets, or breach of fiduciary duty) continues after release

Question 9

How long does SoS have to determine any objection to a trustee’s release?

Answer 9

such time as the Secretary of State may determine

Question 10

How does a trustee obtain release if removed by creditors, they object to release?

Answer 10

Must apply to SoS.

Release effective from date of certificate, or such other date as the certificate specifies.

When the Secretary of State gives the release, the Secretary of State must certify it accordingly and FILE the certificate with the court in a bankruptcy based on a creditor’s petition.

PLUS copies to OR and former trustee

Question 11

When will the SoS determine release?

Answer 11

Release will occur at such time as the Secretary of State may determine—

 the person has been removed from office by a decision of the bankrupt’s creditors and the creditors have decided against his release,

the person has been removed from office by the court or by the Secretary of State,

the person has vacated office as they are no longer qualified

Question 12

What happens where there are unrealised assets when the trustee intends to vacate office?

Answer 12

The rule applies where the trustee intends to vacate office, whether by resignation or otherwise, and as a result there will be a vacancy in the office of trustee which the OR will need to fill

 The trustee must deliver notice of that intention to the official receiver AT LEAST 21 DAYS before the trustee intends to vacate office.

 The notice must include the following details of any property which remains to be dealt with:
 the nature of the property
 its value (or that it has no value)
 its location
 any action taken by the trustee to deal with the property or any reason for the trustee not dealing with it
 the current position in relation to it

Question 13

What happens to the records of a case when there is a successor trustee? (removal, resignation or ceasing to be qualified)

Answer 13

must as soon as reasonably practicable deliver to the successor as trustee—

 the assets of the bankrupt’s estate (after deduction of any expenses properly incurred, and distributions made, by the trustee);

 the records of the bankruptcy, including correspondence, proofs and other documents relating to the bankruptcy while it was within the trustee’s responsibility, and

 the bankrupt’s documents and other records