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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] Amendments Nos. 78 and 130 are technical amendments to sections 61 and 96, to insert cross-references to the sections dealing with a preferential debt and debt settlement arrangement or a personal insolvency arrangement.

Amendment No. 80 replaces the existing text of section 62(1) with revised text which makes clear that unless the creditor concerned otherwise agrees in writing and provision to that effect is made in the terms of the debt settlement arrangement, a preferential debt is to be paid in priority by the debtor. Amendment No. 81 proposes the insertion of an interpretation provision in relation to “preferential debt”. Amendments No. 132 and 133 make corresponding amendments to section 97, which relates to preferential debt for the purposes of the Personal Insolvency Arrangement Chapter. Amendment No. 89 replaces subsections (3), (4) and (5) of section 68 with one new subsection (2). The provisions in subsections (3) and (4) have been addressed by Amendments Nos. 76 and 182. The provisions of the previous subsection (5) relating to preferential debt in relation to a proposal for a Debt Settlement Arrangement have been further refined in the new subsection (2).

  Seanad amendment agreed to.

   Seanad amendment No. 79:

  Section 61: In page 59, between lines 33 and 34, to insert the following subsection:
"(4) Unless provision is otherwise made in the Debt Settlement Arrangement where an Arrangement provides for payments to a creditor to whom section 54 applies that are greater than the payments that creditor would receive if such payments were made on a pari passu basis, the fees, costs and charges referred to in section 60(2)(g) shall be payable by that creditor in proportion to the payments received by him or her.".

  Seanad amendment agreed to.

  Seanad amendment No. 80:

Section 62: In page 59, lines 41 to 46 and in page 60, lines 1 to 6, to delete subsection (1)and substitute the following:
“(1) Unless the creditor concerned otherwise agrees in writing and provision is so made in the terms of the Debt Settlement Arrangement, a preferential debt shall,subject to subsection (3), be paid in priority by the debtor and where those debts are to be paid in priority the provisions of section 81 of the Bankruptcy Act 1988 shall apply with all necessary modifications.”.

  Seanad amendment agreed to.

  Seanad amendment No. 81:

Section 62: In page 60, between lines 19 and 20, to insert the following subsection:
“(4) In this Chapter, “preferential debt” means a debt which, if the debtor concerned were a bankrupt would be a debt—
(a) that by virtue of section 81 of the Bankruptcy Act 1988 is to be paid in priority to all other debts, or

(b) that by virtue of any other statutory provision is to be included among such debts.”.

  Seanad amendment agreed to.

  Seanad amendment No. 82:

Section 63: In page 60, subsection (1), line 20, to delete “section,” and substitute “section and section 57,”.

  Seanad amendment agreed to.

  Seanad amendment No. 83:

 Section 65: In page 62, lines 1 to 21, to delete subsections (2) to (4) and substitute the following:
“(2) When calling a creditors’ meeting under this section, the personal insolvency practitioner shall do so in accordance with any regulations under section 69 and, in any case, shall—
(a) give each creditor at least 14 days written notice of the meeting and the date on which, and time and place at which, the meeting will be held,

(b) ensure that the notice referred to in paragraph (a) is accompanied by a copy of each of the documents referred to in section 66, and

(c) lodge a copy of the notice referred to in paragraph (a) and the documents referred to in section 66 with the Insolvency Service.
(3) Where a creditors’ meeting referred to in subsection (1) does not take place before the expiry of the protective certificate, the Debt Settlement Arrangement procedure shall be deemed to have come to an end.”.

  Seanad amendment agreed to.

  Seanad amendment No. 84:

Section 66: In page 62, subsection (1), line 22, to delete “section 65(3)(b)” and substitute “section 65(2)(b)”.

  Seanad amendment agreed to.

  Seanad amendment No. 85:

Section 66: In page 63, subsection (2), line 20, to delete “section 65(3)” and substitute “section 65(2)”.

  Seanad amendment agreed to.

  Seanad amendment No. 86:

 Section 66: In page 63, subsection (2)(b), line 27, to delete “section 65(3)” and substitute “section 65(2)”.

  Seanad amendment agreed to.

  Seanad amendment No. 87:

Section 67: In page 63, lines 39 to 47, to delete subsection (3) and substitute the following:
“(3) Where the personal insolvency practitioner prepares an amended proposal for a Debt Settlement Arrangement pursuant to subsection (2) he or she shall—
(a) notify the debtor of the date on which, and time and place at which, the adjourned meeting will be held,

(b) at least 7 days before the day of the adjourned meeting, unless all of the creditors agree in writing to receive a shorter period of notice, notify each creditor of the date on which, and time and place at which, the adjourned meeting will be held,

(c) ensure that the notices referred to in paragraph (a) and (b) are accompanied by a copy of the amended proposal, and

(d) lodge a copy of the notice referred to in paragraph (b) and a copy of the amended proposal with the Insolvency Service.”.

  Seanad amendment agreed to.

  Seanad amendment No. 88:
Section 68: In page 64, lines 28 to 30, to delete subsection (2) and substitute the following:
“(2) The voting rights exercisable by a creditor at a creditors’ meeting shall be proportionate to the amount of the debt due by the debtor to the creditor on the day the protective certificate is issued.”.

  Seanad amendment agreed to.

  Seanad amendment No. 89:
Section 68: In page 64, lines 31 to 44, to delete subsections (3) to (6) and substitute the following:
“(3) A creditor to whom a preferential debt is owed shall not be entitled to vote in respect of that debt in favour of a proposal for a Debt Settlement Arrangement at a creditors’ meeting unless that creditor has furnished to the personal insolvency practitioner a waiver in writing of the creditor’s right to have that debt treated as a preferential debt.”.

  Seanad amendment agreed to.

  Seanad amendment no. 90:
Section 73: In page 66, lines 23 to 47 and in page 67, lines 1 to 5, to delete subsections (1) to (6) and substitute the following:
“(1) Where—
(a) no objection is lodged by a creditor with the appropriate court within 14 days of the giving of the notice referred to in section 70, or

(b) an objection is lodged with the appropriate court and the matter is determined by the court on the basis that the objection should not be allowed, the appropriate court shall proceed to consider, in accordance with this section, whether to approve the coming into effect of the Debt Settlement Arrangement.
(2) For the purposes of its consideration under subsection (1), the appropriate court shall consider the copy of the Debt Settlement Arrangement furnished to it under section 71(1) and, subject to subsection (3)—
(a) shall approve the coming into effect of the Arrangement, if satisfied that the—
(i) eligibility criteria specified in section 53 have been satisfied,

(ii) mandatory requirements referred to in section 60(2) have been complied with,

(iii) Debt Settlement Arrangement does not contain any terms that would release the debtor from an excluded debt, an excludable debt (other than a permitted debt) or a secured debt or otherwise affect such a debt, and

(iv) requisite percentage of creditors referred to in section 68(9) has approved the proposal for a Debt Settlement Arrangement,and
(b) if not so satisfied, shall refuse to approve the coming into effect of the Debt Settlement Arrangement.
(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 personal insolvency practitioner 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) For the purposes of subsection (2), the court may accept—
(a) a certificate issued by the Insolvency Service certifying that the eligibility criteria specified in section 53 have been satisfied as evidence that such eligibility criteria have been satisfied, and

(b) the certificate issued by the personal insolvency practitioner concerned pursuant to section 70(1) as evidence that the requisite percentage of creditors referred to in section 68(9) has approved the proposal for a Debt Settlement Arrangement.
(6) The registrar of the appropriate court shall notify the Insolvency Service and the personal insolvency practitioner concerned where the court—
(a) approves or refuses to approve the coming into effect of the Debt Settlement Arrangement under this section, or

(b) decides to hold a hearing referred to in subsection (3).
(7) On receipt of a notification under subsection (6) of the approval of the coming into effect of the Debt Settlement Arrangement, the Insolvency Service shall register the Debt Settlement Arrangement in the Register of Debt Settlement Arrangements.”.

  Seanad amendment agreed to.

  Seanad amendment No. 91:

Section 74: In page 67, subsection (2)(b), lines 19 to 21, to delete all words from and including “concerned,” in line 19 down to and including “Arrangement.” in line 21 and substitute “concerned.”.

  Seanad amendment agreed to.

  Seanad amendment No. 92:

Section 74: In page 67, lines 22 to 43, to delete subsection (3) and substitute the following:
“(3) Where a Debt Settlement Arrangement is in effect, a creditor who is bound by it shall not, in relation to a specified debt—
(a) initiate any legal proceedings;

(b) take any step to prosecute legal proceedings already initiated;

(c) take any step to secure or recover payment;

(d) execute or enforce a judgment or order of a court or tribunal against the debtor;

(e) take any step to recover goods in the possession or custody of the debtor, unless title to the goods is vested in the creditor or the creditor has security over the goods;

(f) contact the debtor regarding payment of the specified debt otherwise than at the request of the debtor;

(g) in relation to an agreement with the debtor, other than a security agreement, by reason only that the debtor is insolvent or that a Debt Settlement Arrangement is in effect—
(i) terminate or amend that agreement, or

(ii) claim an accelerated payment under that agreement.”.

  Seanad amendment agreed to.

  Seanad amendment No. 93:

Section 74: In page 68, between lines 28 and 29, to insert the following subsection:
“(10) Notwithstanding subsections (3) and (4), the fact that a Debt Settlement Arrangement is in effect in relation to a debtor under this Chapter shall not operate to prevent a creditor taking the actions referred to in subsection (3) or (4) as respects another person who has guaranteed the specified debts concerned.”.

  Seanad amendment agreed to.

  Seanad amendment No. 94:

Section 75: In page 69, subsection (5), line 2, after “has” to insert “defaulted”.

  Seanad amendment agreed to.

  Seanad amendment No. 95:

Section 75: In page 69, subsection (10), line 32, after “made” to insert the following:
“under this Act and in accordance with the Debt Settlement Arrangement”.

  Seanad amendment agreed to.

  Seanad amendment No. 96:

Section 77: In page 70, between lines 23 and 24, to insert the following subsections:
“(2) The debtor’s written consent shall be required to any variation of a Debt Settlement Arrangement provided that any unreasonable refusal by the debtor to consent to a variation shall be subject to challenge in accordance with section 84.

(3) A debtor shall be considered to be acting reasonably where the debtor refuses to consent to a variation of a Debt Settlement Arrangement where that variation would require the debtor—
(a) to make additional payments in excess of 50 per cent of the increase in his or her income available to him or her after the following deductions (where applicable) are made:
(i) income tax;

(ii) social insurance contributions;

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

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

(v) such other levies and charges on income as may be prescribed,

or

(b) to make a payment amounting to more than 50 per cent of the value of any property acquired by the debtor after the coming into effect of the Debt Settlement Arrangement unless receipt of that property had been anticipated by the terms of that arrangement.”.

  Seanad amendment agreed to.

  Seanad amendment No. 97:

Section 77: In page 70, subsection (2), line 29, to delete “may” and substitute “shall”.

  Seanad amendment agreed to.

  Seanad amendment No. 98:

Section 77: In page 70, lines 31 to 38, to delete subsection (3), and substitute the following:
“(3) When calling a creditors’ meeting to be held under this section, the personal insolvency practitioner shall—
(a) give each creditor at least 14 days written notice of the meeting and the date on which, and the time and place at which, the meeting will be held,

(b) ensure that the notice referred to in paragraph (a) is accompanied by written proposal for the variation of the Debt Settlement Arrangement, and”.

  Seanad amendment agreed to.

  Seanad amendment No. 99:

Section 77: In page 71, lines 1 to 3, to delete subsection (6) and substitute the following:
“(6) For the purposes of subsection (5), the voting rights exercisable by a creditor at a creditors’ meeting under this section shall be proportionate to the amount of the debt due by the debtor to the creditor on the date on which the vote takes place.”.

  Seanad amendment agreed to.

  Seanad amendment No. 100:

Section 78: In page 71, to delete lines 26 to 45 and in page 72, to delete lines 1 to 20.

  Seanad amendment agreed to.

An Leas-Cheann Comhairle: Information on Michael Kitt Zoom on Michael Kitt Seanad amendments Nos. 101 to 105, inclusive, 108, 110, 156, and 161 to 163, inclusive, are related and will be discussed together by agreement.

  Seanad amendment No. 101:

Section 79: In page 72, subsection (1), line 21, to delete "A creditor" and substitute "Without prejudice to section 84, a creditor".

Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter These amendments deal with situations where a creditor or personal insolvency practitioner wishes to challenge the coming into effect of a debt settlement arrangement or personal insolvency arrangement or to have such an arrangement terminated in accordance with the Bill.

  Amendments Nos. 101 and 108 are technical drafting amendments to insert necessary cross-references in sections 79 and 84. Amendment No. 102 clarifies, in the context of a court’s consideration for the application for termination of a debt settlement arrangement, at what point in time the eligibility criteria were not met.  Amendment No. 103 is a technical drafting amendment to improve the presentation of the Bill. Amendments Nos. 104 and 161 provide for a clearer expression of what constitutes a period of arrears for the purposes of an application to the court by a creditor or personal insolvency practitioner for termination of a debt settlement arrangement or personal insolvency arrangement on the grounds that the debtor is in arrears with his or her payments for at least three months. Amendments Nos. 105 and 162 will ensure that the debtor also will be given notice by the personal insolvency practitioner of the termination of a debt settlement arrangement or personal insolvency arrangement due to a six month arrears default. Amendments Nos. 110 and 156 are technical drafting amendments to sections 84 and 116 to make it clear that a creditor may only challenge a debt settlement arrangement or personal insolvency arrangement on the grounds that the debtor has committed an offence if the offence in question has caused a material detriment to the creditor. The purpose of Amendment No. 163 is to define, in section 118, when a six month arrears default takes place. The new subsection reflects the text of section 80(3), which defines a six month arrears period for the purposes of a debt settlement arrangement.

  Seanad amendment agreed to.

  Seanad amendment No. 102:

Section 79: In page 72, lines 29 to 31 to delete paragraph (b) and substitute the following:
“(b) the debtor, when the Debt Settlement Arrangement was proposed, did not satisfy the eligibility criteria specified in section 53;”.

  Seanad amendment agreed to.

  Seanad amendment No. 103:

Section 79: In page 72, subsection (1)(f), line 42, before “have” to insert “to”.

  Seanad amendment agreed to.

  Seanad amendment No. 104:

Section 79: In page 73, subsection (2), lines 9 and 10, to delete paragraph (b) and substitute the following:
“(b) at no time during that 3 month period were any obligations in respect of those payments discharged.”

  Seanad amendment agreed to.

  Seanad amendment No. 105:

Section 80: In page 73, subsection (1), line 21, after “Service” to insert “and the debtor”.

  Seanad amendment agreed to.

  Seanad amendment No. 106:

Section 81: In page 73, subsection (1), line 36, to delete “has been deemed to come to an end, has failed” and substitute “has been deemed to have failed”.

  Seanad amendment agreed to.

An Leas-Cheann Comhairle: Information on Michael Kitt Zoom on Michael Kitt Seanad amendments Nos. 107, 185 to 191, inclusive, and 193 to 201, inclusive, are related and will be discussed together by agreement.

  Seanad amendment No. 107:

Section 82: In page 74, to delete lines 4 to 8.

Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter Amendment No. 107 proposes the deletion of section 82 which provides that a terminated debt settlement arrangement under sections 78, 79 or 80 are to be deemed acts of bankruptcy. These are now listed in amendment No. 186 which inserts them in to the appropriate section in the Bankruptcy Act 1988. Amendment No. 185 inserts a definition of “trustee" for the purpose of interpretation. Amendment No. 186 amends section 7 of the Bankruptcy Act 1988 to provide that a failed or terminated debt settlement arrangement or personal insolvency arrangement will be included in the list of acts of bankruptcy. Amendments Nos. 187 and 188 are technical drafting amendments to improve the text of the Bill. Amendment No. 189 empowers the court to order the attendance of the debtor at the court hearing of the adjudication of the creditor’s petition for his or her bankruptcy and to make a full disclosure of assets and liabilities. This provision corrects a gap in the present legislation.

Amendment No. 190 is a technical drafting amendment to section 139 of the Bill, which replaces section 15 of the Bankruptcy Act, to add a reference to the requirements of section 11 of that Act being fulfilled. Amendment No. 191 is a technical drafting amendment to improve the presentation of the Bill. Amendment No. 193 provides for the ending of applications for payments by the bankrupt under section 65 in favour of the approach to bankruptcy payment orders now provided under Amendment No. 200. It also provides for the continuation and possible variation of an existing payment order under section 65. Amendments Nos. 194 to 198 are essentially drafting amendments to improve the text by providing for the issue of a certificate of discharge or annulment in a bankruptcy, and to make a necessary reference to a trustee in bankruptcy in the sections of the Bankruptcy Act 1988 concerned.

Amendment No. 200 substitutes and improves the current text in section 146 of the Bill inserting section 85D to the Bankruptcy Act in regard to bankruptcy payment orders which may, if the debtor’s circumstances permit, be sought. The court in deciding on such orders will have regard to the reasonable living expenses of the bankrupt and his or her dependants. Amendment No. 201 updates the time period in section 123 of the Bankruptcy Act in regard to potentially fraudulent actions from the present twelve months to the now standard period in this Bill of three years.

  Seanad amendment agreed to.

  Seanad amendment No. 108:

Section 84: In page 74, subsection (1), line 23, after “are” to insert “, without prejudice to section 79,”.

  Seanad amendment agreed to.

  Seanad amendment No. 109:

Section 84: In page 74, subsection (1)(b), line 32, to delete “followed” and substitute “complied with”.

  Seanad amendment agreed to.

  Seanad amendment No. 110:

Section 84: In page 74, subsection (1)(f), line 42, to delete “Act” and substitute the following:
“Act, which causes a material detriment to the creditor”.

  Seanad amendment agreed to.

  Seanad amendment No. 111:

Section 84: In page 74, subsection (1)(g), line 44, to delete “within the meaning of subsection (2)”.

  Seanad amendment agreed to.

  Seanad amendment No. 112:

Section 84: In page 75, lines 1 to 5, to delete paragraph (h), and substitute the following:
“(h) the debtor had given a preference to a person within the preceding 3 years that had the effect of substantially reducing the amount available to the debtor for the payment of his or her debts (other than a debt due to the person who received the preference).”.

  Seanad amendment agreed to.

  Seanad amendment No. 113:

Section 84: In page 75, lines 6 to 26, to delete subsections (2) and (3).

  Seanad amendment agreed to.

  Seanad amendment No. 114:

Section 85: In page 75, before section 85, but in Chapter 3, to insert the following new section:
85.—(1) Where, as respects a debtor who has entered into a Debt Settlement Arrangement which is in force, a creditor or the personal insolvency practitioner concerned considers that a debtor has made excessive contributions to a relevant pension arrangement, the creditor or personal insolvency practitioner may make an application to the appropriate court for relief in accordance with this section.

(2) The reference to the debtor having made contributions to a relevant pension arrangement shall be construed as a reference to contributions made by the debtor at any time within 3 years prior to the making of the application for a protective certificate on behalf of the debtor under section 54.

(3) Where the appropriate court considers that having regard in particular to the matters referred to in subsection (4) the contributions to a relevant pension arrangement were excessive it may:
(a) direct that such part of the contribution concerned (less any tax required to be deducted) be paid by the person administering the relevant pension arrangement to the personal insolvency practitioner for distribution amongst the creditors of the debtor, and

(b) make such other order as the court deems appropriate, including an order as to the costs of the application.
(4) The matters referred to in subsection (3) as respects the contributions made by the debtor to a relevant pension arrangement are:
(a) whether the debtor made payments to his or her creditors in respect of debts due to those creditors on a timely basis at or about the time when the debtor made the contribution concerned;

(b) whether the debtor was obliged to make contributions of the amount or percentage of income as the payments actually made under his or her terms and conditions of employment and if so obliged, whether the debtor or a person who as respects the debtor is a connected person could have materially influenced the creation of such obligation;

(c) the amount of the contributions paid, including the percentage of total income of the debtor in each tax year concerned which such contributions represent;

(d) the amount of the contributions paid, in each of the 6 years prior to the making of the application for a protective certificate on behalf of the debtor under section 54 including the percentage of total income of the debtor concerned which such contributions represent in each of those years;

(e) the age of the debtor at the relevant times;

(f) the percentage limits which applied to the debtor in relation to relief from income tax for the purposes of making contributions to a relevant pension arrangement in each of the 6 years prior to the making of the application for a protective certificate on behalf of the debtor under section 54; and

(g) the extent of provision made by the debtor in relation to any relevant pension arrangement prior to the making of the contributions concerned.”.

  Seanad amendment agreed to.

An Leas-Cheann Comhairle: Information on Michael Kitt Zoom on Michael Kitt Seanad amendments Nos. 115 and 184 are related and will be discussed together by agreement.

  Seanad amendment No. 115:

Section 85: In page 75, to delete lines 29 to 39.

Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter This group of amendments deals with the review of the Bill after its enactment. Amendment No. 115 which proposes the deletion of section 85, is consequential on the new review section inserted by Amendment No. 135a. amendment No. 184 revises the original review provision in regard to the operation of the Bill. That review, which will now encompass the three new debt resolution processes in Part 3, will commence no later than three years after commencement and be completed within a year.

However, as I said when we discussed this point previously, the operation of this Bill will be subject to ongoing review. I have made it clear that I will swiftly intervene, with amending legislation, to make additional provision or to correct any error that arises from operational experience.

  Seanad amendment agreed to.

  Seanad amendment No. 116:

Section 116: In page 76, between lines 39 and 40, to insert the following subsections:
“(6) (a) A Personal Insolvency Arrangement shall not contain any terms that would release the debtor from an excluded debt or otherwise affect such a debt.

(b) A proposal for a Personal Insolvency Arrangement shall not include any terms that, if contained in a Personal Insolvency Arrangement that came into effect, would contravene paragraph (a).”.

  Seanad amendment agreed to.

  Seanad amendment No. 117:

 Section 88: In page 77, subsection (1)(g), line 18, to delete “statutory declaration” and substitute “declaration in writing”.

  Seanad amendment agreed to.

  Seanad amendment No. 118:

Section 88: In page 78, between lines 33 and 34, to insert the following subsection:
“(5) A debtor shall not be eligible to make a proposal for a Personal Insolvency Arrangement where 25 per cent or more of his or her debts (other than excluded debts) were incurred during the period of 6 months ending on the date on which an application is made under section 89 for a protective certificate.”.

  Seanad amendment agreed to.

  Seanad amendment no. 119:

Section 89: In page 78, before section 89, to insert the following new section:
89.—(1) An excludable debt shall be included in a proposal for a Personal Insolvency Arrangement only where the creditor concerned has consented, or is deemed to have consented, in accordance with this section, to the inclusion of that debt in such a proposal.

(2) Where a personal insolvency practitioner proposes to include an excludable debt in a proposal for a Personal Insolvency Arrangement, he or she 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 inclusion of the debt in a Personal Insolvency Arrangement.
(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 inclusion of that debt in a proposal for a Personal Insolvency Arrangement.

(5) Where a creditor consents or is deemed to have consented, in accordance with this section, to the inclusion of an excludable debt in a proposal for a Personal Insolvency Arrangement, that creditor shall be entitled to vote at any creditors' meeting called to consider that proposal.

(6) Where the debtor concerned is the subject of a protective certificate, and a creditor to whom this section applies brings an application under section 93(1) in respect of that protective certificate, the period referred to in subsection (3) shall not commence until the date on which the appropriate court determines the application.

(7) An excludable debt shall not be the subject of a Personal Insolvency Arrangement unless it is a permitted debt.

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

  Seanad amendment agreed to.

  Seanad amendment No. 120:

Section 89: In page 79, subsection (2), lines 1 to 6, to delete paragraph (e) and substitute the following:
“(e) a schedule of the creditors of the debtor and the debts concerned, stating in relation to each such creditor—
(i) the amount of each debt due to that creditor,

(ii) whether, as respects the debt concerned, the creditor is a secured creditor and, if so, the nature of the security concerned, and

(iii) such other information as may be prescribed;”.

  Seanad amendment agreed to.

  Seanad amendment No. 121:

Section 89: In page 79, between lines 17 and 18, to insert the following subsections:
“(3) An application under this section may be withdrawn by the personal insolvency practitioner at any time prior to the issue of a protective certificate under section 91.

(4) Where a personal insolvency practitioner becomes aware of any inaccuracy or omission in an application under this section or any document accompanying such an application, he or she shall inform the Insolvency Service of this fact as soon as practicable and the Insolvency Service shall have regard to any information provided under this subsection for the purposes of its consideration of the application.”.

  Seanad amendment agreed to.

  Seanad amendment No. 122:

Section 91: In page 80, lines 38 to 49, in page 81 lines 1 to 45 and in page 82 lines 1 to 18, to delete section 91 and substitute the following new section:
91.—(1) Where the Insolvency Service, following its consideration under section 90—
(a) is satisfied that an application under section 89 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 personal insolvency practitioner to that effect, and
(b) is not so satisfied, it shall notify the personal insolvency practitioner to that effect and request him or her, within 21 days from the date of the notification, to submit a revised application or to confirm that the application has been withdrawn.
(2) Where the appropriate court receives the application for a protective certificate 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 eligibility criteria specified in section 88 have been satisfied and the other relevant requirements relating to an application for the issue of a protective certificate have been met, shall issue a protective certificate, and

(b) if not so satisfied, shall refuse to issue a protective certificate.
(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 personal insolvency practitioner 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) Subject to subsections (6) and (7) and section 109(2), a protective certificate shall be in force for a period of 70 days from the date of its issue.

(6) Where a protective certificate has been issued pursuant to subsection (2)(a),the appropriate court may, on application to that court by the personal insolvency practitioner, extend the period of the protective certificate by an additional period not exceeding 40 days where—
(a) the debtor and the personal insolvency practitioner satisfy the court that they have acted in good faith and with reasonable expedition, and

(b) the court is satisfied that it is likely that a proposal for a Personal Insolvency Arrangement which is likely—
(i) to be accepted by the creditors, and

(ii) to be successfully completed by the debtor, will be made if the extension is granted.
(7) Where a protective certificate has been issued pursuant to subsection (2)(a) or extended under subsection (6), the appropriate court may on application to that court extend the period of the protective certificate by a further additional period not exceeding 40 days where—
(a) the personal insolvency practitioner has been appointed in accordance with section 46(7), and

(b) the court is satisfied that the extension is necessary to enable the personal insolvency practitioner so appointed to perform his or her functions under this Chapter.
(8) A hearing held under subsection (7) shall be held with all due expedition.

(9) The period of a protective certificate may be extended under subsection (7) once only.

(10) The registrar of the appropriate court shall notify the Insolvency Service and the personal insolvency practitioner concerned where the court—
(a) issues or extends a protective certificate under this section,

(b) refuses to issue or extend a protective certificate under this section, or

(c) decides to hold a hearing referred to in subsection (3).
(11) Where a protective certificate is issued under this section, the Insolvency Service shall—
(a) enter details of the name and address of the debtor and the date of issue of the protective certificate, and

(b) where applicable, the extension under this section of the protective certificate, together with such other details as may be prescribed under section 128(3)(b), in the Register of Protective Certificates.
(12) On receipt of a notification under subsection (10) of a decision of the court referred to in that subsection, the personal insolvency practitioner shall notify each of the creditors specified in the schedule of creditors of that decision and, in the case of a decision to issue a protective certificate, the notification by the personal insolvency practitioner shall contain a statement—
(a) that the debtor intends to make a proposal for a Personal Insolvency Arrangement,

(b) of the effect of the protective certificate under section 92, and

(c) of the right of the creditor under section 93 to appeal the issue of the protective certificate.
(13) Notwithstanding the provisions of subsections (5), (6) and (7), a protective certificate that is in force on the date on which a proposal for a Personal Insolvency Arrangement is approved in accordance with section 106 shall continue in force until it ceases to have effect in accordance with section 109.

(14) A protective certificate issued under this section shall—
(a) specify—
(i) the name of the debtor who is the subject of it,

(ii) the debts (“specified debts”) which are subject to it, and

(iii) the name of each creditor to whom a specified debt is owed,

and
(b) contain such other information as may be prescribed.
(15) In considering an application under this section the appropriate court shall be entitled to treat a certificate issued by the Insolvency Service under subsection (1) as evidence of the matters certified therein.”.

   Seanad amendment agreed to.

  Seanad amendment No. 123:

Section 92: In page 82, lines 19 to 43 and in page 83, lines 1 to 16, to delete subsections
(1) to (3) and substitute the following:
“(1) Subject to subsections (3), (4) and (5), a creditor to whom notice of the issue of a protective certificate has been given shall not, whilst the protective certificate remains in force, in relation to a specified debt—
(a) initiate any legal proceedings;

(b) take any step to prosecute legal proceedings already initiated;

(c) take any step to secure or recover payment;

(d) execute or enforce a judgment or order of a court or tribunal against the debtor;

(e) take any step to enforce security held by the creditor in connection with the specified debt;

(f) take any step to recover goods in the possession or custody of the debtor (whether or not title to the goods is vested in the creditor or the creditor has security over the goods);

(g) contact the debtor regarding payment of the specified debt, otherwise than at the request of the debtor;

(h) in relation to an agreement with the debtor, including a security agreement, by reason only that the debtor is insolvent or that the protective certificate has been issued—
(i) terminate or amend that agreement, or

(ii) claim an accelerated payment under that agreement.
(2) Whilst a protective certificate remains in force, no bankruptcy petition relating to the debtor—
(a) may be presented by a creditor to whom subsection (1) applies in respect of a specified debt,

(b) in a case where the petition has been presented by such a creditor in respect of a specified debt, may be proceeded with.
(3) Without prejudice to subsections (1) and (2), whilst a protective certificate remains in force, no other proceedings and no execution or other legal process in respect of a specified debt may be commenced or continued by a creditor to whom subsection (1) applies against the debtor or his or her property, except with the leave of the court and subject to any order the court may make to stay such proceedings, enforcement or execution for such period as the court deems appropriate pending the outcome of attempts to reach a Personal Insolvency Arrangement, but this subsection shall not operate to prohibit the commencement or continuation of any criminal proceedings against the debtor.”.

  Seanad amendment agreed to.

  Seanad amendment No. 124:

Section 92: In page 83, lines 36 and 37, to delete subsection (8).

  Seanad amendment agreed to.

  Seanad amendment No. 125:

Section 93: In page 84, subsection (3)(a), line 1, to delete “failing to give such direction” and substitute “not making such an order”.

  Seanad amendment agreed to.

  Seanad amendment No. 126:

Section 94: In page 84, to delete lines 17 to 27 and substitute the following:
“(1) Where a protective certificate has been issued, the personal insolvency practitioner shall as soon as practicable thereafter—
(a) give written notice to the creditors concerned that the personal insolvency practitioner has been appointed by the debtor for the purpose of making a proposal for a Personal Insolvency Settlement Arrangement and, subject to section 97(2), invite those creditors to make submissions to the personal insolvency practitioner regarding the debts concerned and the manner in which the debts might be dealt with as part of a Personal Insolvency Arrangement, and such notice shall be accompanied by the debtor’s completed Prescribed Financial Statement,”.

  Seanad amendment agreed to.

  Seanad amendment No. 127:

Section 94: In page 84, subsection (1)(b)(ii), line 36, to delete “section 98.” and substitute the following:
“section 98,
and

(c) make a proposal for a Personal Insolvency Arrangement in respect of the debts concerned.”.

  Seanad amendment agreed to.

  Seanad amendment No. 128:

Section 95: In page 85, subsection (2), lines 28 to 48 and in page 86, lines 1 to 25, to delete paragraphs (c) to (e) and substitute the following:
“(c) where the debtor performs all of his or her obligations specified in a Personal Insolvency Arrangement, he or she shall not stand discharged from the secured debts covered by the Personal Insolvency Arrangement except to the extent provided for under the terms of the Personal Insolvency Arrangement;”.

  Seanad amendment agreed to.


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