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Personal Insolvency Bil 2012: From the Seanad (Resumed) (Continued)

Wednesday, 19 December 2012

Dáil Éireann Debate
Vol. 787 No. 4

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(Speaker Continuing)

[Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter] I share the view that a car is a necessity depending on where one lives in this State. For some it is a necessity for social interaction and contact with family and friends, while for others it is essential to get to work and for taking their children to school. We have taken that into account, but there must be a balance. I cannot accept the amendments in the context of that balance.

  Amendment No. 1 to Seanad amendment No. 31 put and declared lost.

  Seanad amendment No. 31 agreed to.

Seanad amendment No. 32:

Section 24: In page 27, subsection (6)(c)(ii)(I), line 35, to delete “€1,200 or less” and substitute the following:

“€2,000 or less, or is worth such other amount as the Minister may prescribe, where the cost of purchase of that item is not included in the qualifying debts of the debtor for the purposes of subsection (2)(a)”.

Deputy Pádraig Mac Lochlainn: Information on Pádraig MacLochlainn Zoom on Pádraig MacLochlainn I move amendment No. 1 to Seanad amendment No. 32:

In line 1, to delete “€2,000” and substitute “€3,000”.

  Amendment No. 1 to Seanad amendment No. 32 put and declared lost.

  Seanad amendment No. 32 agreed to.

  Seanad amendment No. 33:

Section 24: In page 28, subsection (6), to delete lines 4 to 7 and substitute the following:

“(iv) any interest in or entitlement under a relevant pension arrangement unless subsection (14) applies.”.

  Seanad amendment agreed to.

  Seanad amendment No. 34:

Section 24: In page 28, subsection (7), lines 10 to 15, to delete paragraphs (a) to (c) and substitute the following:

“(a) the current liabilities of the debtor,

 (b) the contingent and prospective liabilities of the debtor and (insofar as is ascertainable) the times at which such liabilities will become due for payment,

(c) the current and prospective assets and income of the debtor, and

(d) guidelines issued under section 23*.”.

  Seanad amendment agreed to.

  Seanad amendment No. 35:

Section 24: In page 28, lines 16 to 28, to delete subsection (8).

  Seanad amendment agreed to.

  Seanad amendment No. 36:

Section 24: In page 28, lines 29 to 47, and in page 29, lines 1 to 5, to delete subsections (9) and (10).

  Seanad amendment agreed to.

  Seanad amendment No. 37:

Section 24: In page 30, between lines 11 and 12, to insert the following subsection:

“(14) In determining what constitutes reasonable living expenses or a reasonable standard of living for the purposes of this section, regard shall be had to guidelines issued under section 23*.”.

  Seanad amendment agreed to.

  Seanad amendment No. 38:

Section 24: In page 30, between lines 11 and 12, to insert the following subsections:

“(14) Where this subsection applies and a debtor has an interest in or entitlement under a relevant pension arrangement which would, if the debtor performed an act or exercised an option, cause that debtor to receive from or at the request of the person administering that relevant pension arrangement—
(a) an income, or

(b) an amount of money other than income,
in accordance with the relevant provisions of the Taxes Consolidation Act 1997, that debtor shall be considered as being in receipt of such income or amount of money.

(15) Subsection (14) applies where the debtor—
(a) is entitled at the date of the making of the application for a Debt Relief Notice,

(b) was entitled at any time before the date of the making of the application for a Debt Relief Notice, or

(c) will become entitled within 6 months of the date of the making of the application for a Debt Relief Notice,
to perform the act or exercise the option referred to in subsection (14).”.

  Seanad amendment agreed to.

  Seanad amendment No. 39:

Section 25: In page 30, subsection (1), lines 15 to 17, to delete paragraph (a) and substitute the following:
“(a) such information as may be prescribed in relation to—
(i) his or her creditors,

(ii) his or her debts and other liabilities,

(iii) his or her assets, and

(iv) the efforts made by him or her to reach an alternative repayment arrangement with his or her creditors, and”.

  Seanad amendment agreed to.

Acting Chairman (Deputy Bernard Durkan): Seanad amendments Nos. 40, 41, 54, 55, 58, 59, 170 and 180 are related and may be discussed together.

  Seanad amendment No. 40:

Section 25: In page 31, lines 28 to 46 and in page 32, lines 1 to 3, to delete subsections (9) and (10) and substitute the following:

“(9) Where an approved intermediary resigns from the role of approved intermediary as respects a debtor, he or she shall notify the Insolvency Service of that fact, which notification shall be accompanied by a statement of the reasons for his or her resignation.

(10) Where, at any time during the Debt Relief Notice process after the debtor has made the confirmation referred to in subsection (3), the approved intermediary concerned (“original approved intermediary”)—
(a) dies,

(b) becomes incapable, through ill-health or otherwise, of performing the functions of an approved intermediary as respects the debtor,

(c) resigns from the role of approved intermediary as respects the debtor, or

(d) is no longer entitled to perform the functions of an approved intermediary under this Act,

the debtor shall, as soon as practicable after becoming aware of that fact, appoint another approved intermediary to act as his or her approved intermediary for the purposes of this Chapter.

(11) (a) Where paragraph (a), (b) or (c) of subsection (10) applies, the debtor concerned shall, as soon as practicable, inform the Insolvency Service of that fact.

(b) Where an approved intermediary has been appointed under subsection (10), the approved intermediary shall, as soon as practicable, inform the Insolvency Service and the creditors concerned of that fact.”.

Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter These amendments provide for situations where an approved intermediary or personal insolvency practitioner resigns or becomes unable to act, and a replacement intermediary or practitioner is appointed.

  Amendment No. 40 improves the text of the provisions of section 25 dealing with situations where an approved intermediary resigns or otherwise becomes unavailable to continue acting as such for the debtor. Essentially, the required notifications to be made by the parties concerned are set out in a clearer fashion. Subsection (10) now provides that if an approved intermediary resigns from the role in respect of a debtor, the intermediary shall be required to notify the insolvency service. A replacement approved intermediary must inform the insolvency service of his or her appointment. I ask the House to note a slight correction of alignment in amendment No. 40, which is that in the new subsection (10), the text after paragraph (d) should be aligned to subsection level. That will be dealt with in the final printed form of the Bill.

  Amendment No. 54 amends the existing provision so as to empower the insolvency service to prescribe the criteria for authorisation of persons as authorised intermediaries.

  Amendment No. 55 provides that the authorisation of a person to act as an approved intermediary may be withdrawn, as provided for in regulations, when they no longer meet the criteria for authorisation.

  Amendment No. 58 replaces subsections (4) to (6) of section 46 with new text regarding notification and reporting responsibilities relating to the resignation and replacement of personal insolvency practitioners. These amendments are required to improve the overall presentation of the section for clarity and for consistency of approach with the amendments to section 25 regarding approved intermediaries.

  Amendments Nos. 41, 59, 170 and 180 are technical drafting amendments to further refine the text.

  Seanad amendment agreed to.

  Seanad amendment No. 41:

Section 25: In page 32, subsection (11), lines 4 and 5, to delete “subsection (9)” and substitute “subsection (10)”.

  Seanad amendment agreed to.

  Seanad amendment No. 42:

Section 26: In page 32, before section 26, to insert the following new section:

26.—(1) A Debt Relief Notice shall be issued in respect of an excludable debt only where the creditor concerned has consented, or is deemed to have consented, in accordance with this section, to the issue of such a Debt Relief Notice.

  (2) Where a debtor who wishes an application under section 26 to be made on his or her behalf wishes the Debt Relief Notice concerned to be issued in respect of an excludable debt, the approved intermediary concerned shall, without delay, notify the creditor concerned of that fact, which notification shall be accompanied by—
(a) such information about the debtor’s affairs (including his or her creditors, debts, liabilities, income and assets) as may be prescribed, and

(b) a request in writing that the creditor confirm, in writing, whether or not the creditor consents, for the purposes of this section, to the Debt Relief Notice being issued in respect of the debt.
  (3) A creditor shall comply with a request under subsection (2)(b) within 21 days of receipt of the notification under that subsection.

  (4) Where a creditor does not comply with subsection (3), the creditor shall be deemed to have consented to the issue of a Debt Relief Notice in respect of the debt concerned.

  (5) In this Chapter, “permitted debt” means an excludable debt to which subsection (1) applies.”.

  Seanad amendment agreed to.

  Seanad amendment No. 43:

Section 25: In page 32, subsection (2)(c), line 31, to delete “section 25;” and substitute the following:
section 25 and a statutory declaration made by the debtor confirming that the statement is a complete and accurate statement of the debtor’s assets, liabilities, income and expenditure;”.

  Seanad amendment agreed to.

  Seanad amendment No. 44:

Section 25: In page 32, subsection (2)(d), to delete lines 34 to 37 and substitute the following:
“(i) the amount of each debt due to that creditor,

(ii) whether the creditor concerned is a secured creditor and, if so, the details of any security held in respect of the debt concerned, and

(iii) where the debt is an excludable debt, whether that debt is a permitted debt within the meaning of section 26;”.

  Seanad amendment agreed to.

  Seanad amendment No. 45:

Section 25: In page 33, between lines 26 and 27, to insert the following subsection:

  “(5) An application under this section may be withdrawn by the approved intermediary at any time prior to the issue of a Debt Relief Notice under section 28.”.

  Seanad amendment agreed to.

  Seanad amendment No. 46:

Section 28: In page 34, lines 38 to 45 and in page 35, lines 1 to 8, to delete subsections (1) to (3) and substitute the following:

“28.—(1) Where the Insolvency Service, following its consideration under section 27
(a) is satisfied that an application under section 26 is in order, it shall—
(i) issue a certificate to that effect,

(ii) furnish that certificate together with a copy of the application and supporting documentation to the appropriate court, and

(iii) notify the approved intermediary to that effect, and
(b) is not so satisfied, it shall notify the approved intermediary to that effect.
  (2) Where the appropriate court receives the application and accompanying documentation pursuant to subsection (1)(a), it shall consider the application and documentation and, subject to subsection (3)
(a) if satisfied that the criteria specified in section 24(2) have been satisfied, shall issue a Debt Relief Notice in respect of the debts specified in the application under section 26 which it is satisfied are qualifying debts, and

(b) if not so satisfied, shall refuse to issue a Debt Relief Notice.
  (3) The appropriate court, where it requires further information or evidence for the purpose of its arriving at a decision under subsection (2), may hold a hearing, which hearing shall be on notice to the Insolvency Service and the approved intermediary concerned.

  (4) A hearing referred to in subsection (3), unless the appropriate court considers it appropriate to hold it in public, shall be held otherwise than in public.

  (5) The registrar of the appropriate court shall notify the Insolvency Service where the appropriate court—
(a) issues a Debt Relief Notice under this section,

(b) refuses an application under subsection (2)(b), or

(c) decides to hold a hearing referred to in subsection (3).”.

  Seanad amendment agreed to.

  Seanad amendment No. 47:

Section 30: In page 35, subsection (1), line 21, to delete “section 28(3)” and substitute “section 28(5)(a)”.

  Seanad amendment agreed to.

  Seanad amendment No. 48:

Section 32: In page 37, subsection (1)(g), line 18, after “debtor,” to insert “other than a security agreement,”.

  Seanad amendment agreed to.

  Seanad amendment No. 49:

Section 32: In page 37, subsection (1)(g)(ii), lines 22 and 23, to delete “, or a forfeiture of a term,”.

  Seanad amendment agreed to.

  Seanad amendment No. 50:

Section 33: In page 38, lines 29 to 35, to delete subsection (3) and substitute the following:

  “(3) Subject to subsections (4) and (5), a specified debtor whose income increases by €400 or more per month during the supervision period concerned shall surrender to the Insolvency Service 50 per cent of that increase.

  (4) The reference in subsection (3) to a specified debtor’s income is a reference to his or her income as stated in the information provided, or documents submitted by him or her, or on his or her behalf, under section 26, less the following deductions (where applicable):
(a) income tax;

(b) social insurance contributions;

(c) payments made by him or her in respect of excluded debts;

(d) payments made by him or her in respect of excludable debts that are not permitted debts;

(e) such other levies and charges on the specified debtor’s income as may be prescribed.”.

  Seanad amendment agreed to.

  Seanad amendment No. 51:

Section 34: In page 39, lines 13 and 14, to delete subsection (4).

  Seanad amendment agreed to.

  Seanad amendment No. 52:

Section 35: In page 39, lines 15 to 31, to delete section 35 and substitute the following:

35.—(1) The Insolvency Service, on receipt of a sum under subsection (2) or (3) of section 33 or under section 34, shall deal with that sum in accordance with this section.

  (2) On receipt of a sum referred to in subsection (1), the Insolvency Service shall, subject to subsection (3)
(a) apportion that sum, on a pari passu basis, among the specified creditors to whom a specified qualifying debt that is a permitted debt is owed, and

(b) within one month of such receipt, transmit to each such specified creditor payment of the sum apportioned to that creditor under paragraph (a).
  (3) Where, following a payment or payments to specified creditors under subsection (2) or subsection (4), as the case may be, all of the specified qualifying debts referred to in subsection (2) have been paid in full, the Insolvency Service shall, in relation to a sum referred to in subsection (1)
(a) apportion that sum, on a pari passu basis, among the remaining specified creditors concerned, and

(b) within one month of such receipt, transmit to each such specified creditor payment of the sum apportioned to that creditor under paragraph (a).
  (4) Where the Insolvency Service—
(a) has apportioned a sum to a specified creditor under subsection (2)(a) or (3)(a), as the case may be, and

(b) after reasonable efforts, is unable to locate that specified creditor,
it shall apportion the sum referred to in paragraph (a) among the specified creditors referred to in subsection (2)(a) or (3)(a), as the case may be, whom it has succeeded in locating and, within one month of doing so, shall transmit to each such specified creditor payment of the sum so apportioned.

  (5) Where a specified qualifying debt is secured, the Insolvency Service, in apportioning a sum to the specified creditor concerned under subsection (2)(a), (3) (a) or (4), shall disregard the value of the security held by the specified creditor for that debt.”.

  Seanad amendment agreed to.

  Seanad amendment No. 53:

Section 41: In page 42, subsection (4)(e), line 35, to delete “as the court thinks fit” and substitute “as it deems appropriate”.

  Seanad amendment agreed to.

  Seanad amendment No. 54:

Section 44: In page 44, subsection (5), line 9, to delete “The Minister may” and substitute the following:

“The Insolvency Service, with the consent of the Minister, may and, if directed by the Minister to do so and in accordance with the terms of the direction, shall, following consultation with any other person or body as the Insolvency Service thinks appropriate or as the Minister directs,”.

  Seanad amendment agreed to.

  Seanad amendment No. 55:

Section 44: In page 44, between lines 16 and 17, to insert the following new subsection:

  “(6) Regulations under subsection (5) may provide for the withdrawal of an authorisation of a person where he or she no longer meets the criteria for such an authorisation prescribed in those regulations.”.

  Seanad amendment agreed to.

An Leas-Cheann Comhairle: Information on Michael Kitt Zoom on Michael Kitt Amendments Nos. 56, 57, 61, 63, 65 to 67, inclusive, 117, 118, 120 to 122, inclusive, and 177 to 179, inclusive, are related and may be discussed together.

  Seanad amendment No. 56:

Section 46: In page 44, lines 29 to 35, to delete subsection (1) and substitute the following:

“46.—(1) A debtor to whom section 45 applies shall submit to a personal insolvency practitioner a written statement disclosing all of the debtor’s financial affairs, which statement shall include—
(a) such information as may be prescribed in relation to—
(i) his or her creditors,

(ii) his or her debts and other liabilities,

(iii) his or her assets, and

(iv) guarantees (if any) given by the debtor in respect of a debt of another person,
and

(b) such other financial information as may be prescribed.”.

Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter These amendments address matters relating to an application for a protective certificate in the debt settlement arrangement and personal insolvency arrangement processes.

  Amendment No. 56 substitutes the existing text of section 46(1) with new text regarding the information which the debtor is required to provide to the personal insolvency practitioner about his or her financial affairs. It also now includes a requirement for the disclosure of details of any guarantees given by the debtor. The amendment is intended to improve the clarity of the provision.

  Amendment No. 57 is a technical drafting amendment to further refine the text to include a reference to the provision of the personal insolvency practitioner’s advice in writing.

  The purpose of Amendment No. 61 is to make clear that where the advice of a personal insolvency practitioner is that a debtor should not make a proposal for, or enter into, an arrangement, the personal insolvency practitioner is required to notify the insolvency service of that fact, and the appointment of the personal insolvency practitioner shall come to an end.

  Amendment No. 63 inserts a new subsection (3) in section 53 to provide that a proposal for a debt settlement arrangement should only concern debts which are in default for a period of more than six months prior to the application. Amendment No. 118 provides for a similar amendment to be made to section 88 regarding a proposal for a personal insolvency arrangement.

  Amendment No. 65 extends the provisions of section 54(2)(e) with new text to provide that the schedule of debts and creditors that must accompany an application for a protective certificate relating to a proposal for a debt settlement arrangement should also contain any other information that may be prescribed. Amendment No. 120 provides for a corresponding amendment to section 89(2)(e) regarding an application for a protective certificate relating to a proposal for a personal insolvency arrangement.

  Amendment No. 66 inserts two new subsections in section 54 to improve the text. The new subsection (3) provides that an application for a protective certificate may be withdrawn by the personal insolvency practitioner at any time prior to the issue of the certificate. This is not made clear in the Bill as it currently stands. The new subsection (4) places an obligation on the personal insolvency practitioner to notify the insolvency service as soon as practicable after he or she becomes aware of any inaccuracy or omission in an application for a protective certificate. The insolvency service is required to have regard to any such information provided under subsection (4) for the purposes of its consideration of the debtor’s application. Amendment No. 121 provides for the same amendments to be made to section 89 in relation to the personal insolvency arrangement.

  Amendment No. 67 will replace the current section 56 with improved and extended text regarding the process whereby the insolvency service refers an application for a protective certificate in respect of a debt settlement arrangement to the court. The new elements concern situations where the insolvency service is dissatisfied with the application and may require a revised application or where a court requires further information. Where a court decides to hold a hearing, it may hold it otherwise than in public.  Amendment No. 122 is similar in purpose to Amendment No. 67 and proposes the replacement of section 91 relating to the process for referring an application for a protective certificate in respect of a personal insolvency arrangement to the court.


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