Bankruptcy (M2.3 The OR) Flashcards
What are the investigatory duties of the OR?
s289
(1) The official receiver shall—
(a) investigate the conduct and affairs of each bankrupt (including his conduct and affairs before the making of the bankruptcy order), and
(b) make such report (if any) to the court as the official receiver thinks fit.
(2) Subsection (1) shall not apply to a case in which the official receiver thinks an investigation under that subsection unnecessary.
(4) A report by the official receiver under this section shall in any proceedings be prima facie evidence of the facts stated in it.
What are the OR’s powers?
To require a statement of affairs from the bankrupt s288
To apply to court for:
the public examination of the bankrupt s290
the private examination of the bankrupt or others s366
the suspension of the bankrupt’s automatic discharge s279
On behalf of the Secretary of State, seek a Bankruptcy Restriction Order or Undertaking s 281A and Sch 4A
If a debtor presents their own application for a BO, can the OR require an SA?
No
How long does a bankrupt have to submit a Statement of affairs once required to do so?
21 days.
OR may extend period
Bankrupt may apply to court to extend
Who can apply for the public examination of the bankrupt? (s290)
OR only. (Court shall order examination)
When must the OR apply for the public examination of a bankrupt?
Rule 10.101
If ‘not less than half’ (ie more than 50%) of creditors give notice requiring him to do so.
1) A notice by a creditor to the official receiver, under section 290(2), requesting the bankrupt to be publicly examined must be accompanied by—
(a)a list of the creditors concurring with the request with the name and postal address of each and the amount of their respective claims; and
(b)confirmation by each creditor of that creditor’s concurrence; and
(c)a statement of the reasons why the public examination is requested.
Before the official receiver makes the requested application, the creditor requesting the examination must deposit with the official receiver such sum (if any) as the official receiver determines is appropriate as security for the expenses of the public examination, if ordered.(5)
The official receiver must make the application for the examination—
(a)within 28 days of receiving the creditor’s request (if no security is required under paragraph (4)); or
(b)within 28 days of the creditor depositing such security if security is requested.
(6) However, if the official receiver thinks the request is unreasonable, the official receiver may apply to the court for an order to be relieved from making the application.
Who can take part in a public examination?
TheOR
The trustee (if different from the OR)
Any special manager
Any creditor who. has submitted a proof of debt
Who can be summoned to appear in a private examination (s366)?
At any time after a bankruptcy order has been made the court may summon to appear before it:
thebankrupt
the bankrupt’s spouse or former spouse or civil partner or former civil
partner
any person known or believed to have any property comprised in the bankrupt’s estate in his possession
Any person indebted to the bankrupt
Any person appearing to the court to be able to give information concerning
the bankrupt or the bankrupt’s dealings, affairs or property
Who may apply for a private examination (s366)?
OR or Trustee may apply. (Court may order examination)
Who may ask questions at a private examination? (Bky, DRO, Lie)
OR/ trustee only (more for liquidation? etc), not creditors. But:
2) Unless the applicant objects, the following persons may attend the examination with the permission of the court and may put questions to the respondent (but only through the applicant)—
(a)any person who could have applied for an order under the applicable section; and
(b)any creditor who has provided information on which the application was made under section 236 or 366.
What else may the court order under s366?
Court may require persons believed to have property or information to:
submit a witness to the court containing an account of their dealings; or produce any documents in their possession or under their control
What are the time frames for a private examination? (Co, Bkt or DRO)
12.19.—(1) Where the court orders the respondent to appear before it, it must specify the venue for the appearance.
(2) The date must not be less than 14 days from the date of the order.
(3) If the respondent is ordered to file with the court a witness statement or a written account, the order must specify—
(a)the matters which are to be dealt with in it; and
(b)the time within which it is to be delivered.
(4) If the order is to produce documents or other records, the time and manner of compliance must be specified.
(5) The applicant must serve a copy of the order on the respondent as soon as reasonably practicable.
Who must be serviced with notice of a public examination?
Now many days notice must be given?
Rule 10.100
The official receiver must deliver at least 14 days’ notice of the public examination to—
(a)any trustee or special manager; and
(b)subject to any contrary direction of the court, every creditor of the bankrupt who is known to the official receiver.
(2) Where the official receiver thinks fit, a notice of the order must be gazetted not less than 14 days before the day fixed for the hearing.
(3) The official receiver may advertise the notice in such other manner as the official receiver thinks fit.
(4) The notice must state the purpose of the examination hearing and the venue.
What is the penalty for non- attendance at
A a Public examination
B a private examination
A Guilty of contempt of court
B Warrants for seizure or arrest
Does the court have the power to suspend discharge indefinitely?
No
On the application of the official receiver or the trustee of a bankrupt’s estate, the court may order that the period specified in subsection (1) shall cease to run until—
(a)the end of a specified period, or
(b)the fulfilment of a specified condition.
How much notice of an SOD hearing must the trustee/ OR give?
Court required to give notice to bkt at least 21 days in advance. PLUS OR/ trustee must deliver their report to the court to the Bkt/ OR/trustee at least 21 days in advance.
If a trustee wishes to support the OR’s application for an SOD, when must he deliver evidence in support to the OR & bkt?
21 days
A: When must a bankrupt file a notice at court specifying the statements that he intends to deny or dispute?
B: How long does the bkt have to deliver copies to OR & any trustee?
A no later than 5 business days before hearing
B: not less than 3 business days before hearing
If a bankrupt makes an application to lift an SOD, how much notice must he give to OR/ any trustee?
Not less than 28 days before date fixed for the hearing.
A: Where a bkt has made an application to list an SOD, and the OR or trustee wishes to file a report drawing matters to the court’s attention, when must this be filed?
B: If the bankrupt wishes to dispute any detail of the OR/ trustee’s report when
A: No later than 14 days before hearing. Also must be delivered to OR, trustee & bkt in same time frame.
B: File at court no later than 5 business days, plus deliver to OR/ trustee no less than 3 business days before hearing.
Can the court appoint the supervisor of an IVA if there is a bankruptcy application?
Yes
How can the OR as trustee be removed?
Removal of OR as Trustee – s298(4)
(4) Where the official receiver is trustee by virtue of section 291A(1) ….. a creditors’ decision procedure may be instigated for the purpose of removing the trustee only if—
(a) thetrusteethinksfit,or
(b) thecourtsodirects,or
(c) one of the bankrupt’s creditors so requests, with the concurrence of not less than one-quarter, in value, of the creditors (including the creditor making the request).
When is the OR released as trustee?
Release of the OR as Trustee – s299
(1) Where the official receiver has ceased to be the trustee of a bankrupt’s estate and a person is appointed in his stead, the official receiver shall have his release with effect from the following time, that is to say—
(a) where that person is appointed by the bankrupt’s creditors or by the Secretary of State, the time at which the official receiver gives notice under this paragraph to the prescribed person that he has been replaced, and
(b) where that person is appointed by the court, such time as the court may determine.
(2) If the official receiver while he is the trustee gives notice to the Secretary of State that the administration of the bankrupt’s estate in accordance with Chapter IV of this Part is for practical purposes complete, he shall have his release with effect from such time as the Secretary of State may determine.
