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Personal Insolvency Bill 2012 passed by Houses of Oireachtas

The Personal Insolvency Bill 2012 completed its passage through the Dáil

and Seanad today (19 December 2012). In accordance with the Constitution,

it will now be presented to the President for signature.

The Personal Insolvency Bill represents the most radical and comprehensive

reform of our insolvency and bankruptcy law and practice since the

foundation of the State and is a fundamental part of the Government’s

strategy to return this country to stability and economic growth. It is an

extensive and legally complex Bill and introduces new concepts to Irish law

and, indeed the Personal Insolvency Arrangement, introduces a concept

unique in international insolvency law.

The passage of the Personal Insolvency Bill fulfils a key commitment in the

Programme for Government. It was also required by the terms of the

EU-IMF-ECB Programme of Financial Support for Ireland. The Bill provides

for the introduction of three new debt resolution processes, which though

requiring approval by the court, are essentially non-judicial in nature:

· The Debt Relief Notice (DRN) will allow for the write-off of

qualifying unsecured debt up to €20,000, subject to a three year

supervision period.

· The Debt Settlement Arrangement (DSA) provides for the agreed

settlement of unsecured debt, with no limit involved, normally over

five years.

· The Personal Insolvency Arrangement (PIA) will enable the agreed

settlement of secured debt up to €3 million, although this cap may be

increased with the consent of all secured creditors, and unsecured

debt without limit, normally over six years.

The Bill will continue the reform of the Bankruptcy Act 1988 which Minister

Shatter began in the Civil Law (Miscellaneous Provisions) Act 2011. The

critical new provision is the introduction of automatic discharge from

bankruptcy after three years, subject to certain conditions, rather than

the current 12 year arrangement. Further information on each of the new

debt resolution processes is included below.

Speaking following the passage of the Bill, Minister for Justice, Equality

and Defence, Alan Shatter TD, said “I have been keen to ensure that the

Insolvency Service of Ireland make an immediate impact upon completion of

the legislation. The Director-designate of the Insolvency Service, Mr

Lorcan O’Connor, commenced in his role at the end of October 2012. Since

his appointment he has established an implementation team to address all

operational matters necessary for the opening of the Service as soon as

possible.

“The Insolvency Service is working towards a launch date in Quarter 1 of

2013 that will include the opening of an office and website, the launch of

an information campaign and the issuing of publications and relevant

guidelines.

Intensive efforts are also under way to design and implement the regulatory

and IT frameworks required to be in place prior to the Service accepting

applications for the new debt solutions. These should be in place during

Quarter 2 of 2013.

While it is difficult to ascertain the likely demand on the new Insolvency

Service, the tentative estimate of applications for the two main debt

resolution processes - the Debt Settlement Arrangement and Personal

Insolvency Arrangement - is roughly 15,000 applications plus a further

3,000 to 4,000 applications for Debt Relief Notices in the first full year.

We would also expect about 3,000 bankruptcy applications during this time.

There were approximately 30 bankruptcy adjudications in 2011.

Minister Shatter continued “In order to deal with this anticipated volume

of work and to facilitate the speedy consideration of insolvency

applications, a small new cadre of Specialist Judges of the Circuit Court

will be introduced. Rather than seeking to appoint additional judges with

the associated extra salary and pension costs to the Exchequer, the

Government has decided that eligibility for these new judgeships will be

initially confined to serving County Registrars with the necessary legal

qualifications and practice experience. This should have the effect of

ensuring that the creation of this new cadre will be largely cost neutral”.

The Bill makes provision for a maximum of eight such specialist judges. The

final number will depend on the volume of work but it is likely that six

will be appointed in the first instance. The posts will be advertised by

the Judicial Appointments Advisory Board which will forward a list of

suitable applicants to Government following which nominees will be

recommended to the President for appointment.

The Bill makes provision for the Insolvency Service to draw up guidelines

in regard to reasonable living expenses that would be allowed to a debtor

in one of the new insolvency processes. Minister Shatter said “In doing

this, the Service will have regard to poverty indicators as set out in

Government publications on poverty and social inclusion and statistical

information collated by the Central Statistics Office on household income

and expenditure. The Service will take into consideration individual

circumstances such as differences in the size and composition of

households, and the differing needs of persons, having regard to matters

such as their age, health and whether they have a physical, sensory, mental

health or intellectual disability”.

With regard to the appointment of personal insolvency practitioners (PIPs)

the Minister said "The Insolvency Service will not impose any particular

restrictions as to the type of professions of persons who will be licensed

to perform this function. However, the entry requirements will be set at a

high level to ensure the competency of the Personal Insolvency

Practitioners and to promote public confidence in the system. Looking at

the experience in other countries, insolvency practitioners tend to be

accountants or lawyers, but can also be other professionals in the broad

financial services sectors. Professional mediators may also bring their

unique skills to the role. The Service will be responsible for the direct

regulation of personal insolvency practitioners”.

The Bill provides for certain debts deemed “excludable” debts, (mostly owed

to the State) to be proposed for resolution in the new debt resolution

processes subject to the explicit consent of the creditor concerned. Such

provision can assist in a holistic approach to debt resolution by seeking

to deal with all of the debts owed by a debtor in one arrangement.

“Excludable debts” as defined in the Bill include, for example, any

liability arising out of any tax, duty, levy or other charge of a similar

nature owed or payable to the State, amounts payable under the Local

Government (Charges) Act 2009 and the Local Government (Household Charge)

Act 2011, a debt or liability in respect of moneys advanced by the Health

Service Executive under the Nursing Homes Support Scheme Act 2009 and a

debt due to any owners’ management company in respect of annual service

charges under the Multi-Unit Developments Act 2011. Where the creditor

consents to the inclusion of their “excludable debt” in a debt resolution

process these debts then become known as “permitted debts”.

The Minister further added, “A number of concerns have been raised about

the balance of power between banks and debtors, which has been commonly

referred to as a “Bank Veto”. The reality is that it is in the best

interests of both debtors and creditors to seek to conclude an acceptable

and workable bilateral arrangement under the Personal Insolvency Bill, be

it a Debt Settlement Arrangement or Personal Insolvency Arrangement. The

latter such Arrangement will be of particular use for those persons

experiencing difficulty with repayment of their mortgages and will have to

provide, in appropriate circumstances, not only for debt forbearance but

also debt forgiveness i.e. a write off of a proportion of outstanding

capital or debt.

“The insolvent debtor will, with the assistance of a personal insolvency

practitioner, put forward a realistic offer to his creditors that will

restore the debtor to solvency within a reasonable period, thus giving

creditors a better financial outcome than the alternative bankruptcy. The

creditors will need to consider carefully the debtor's offer, conscious

that if they refuse, the debtor can avail of bankruptcy. Bankruptcy is the

ultimate appeal mechanism of the debtor. It is clearly advantageous for

both debtors and creditors to avail of the Debt Settlement Arrangement and

the Personal Insolvency Arrangement and to avoid bankruptcy where

possible."

Finally, the Minister said "Under the provisions of the Bill, the three new

debt resolution processes will be formally reviewed no later than three

years after commencement. However, I intend that the operation of this Bill

will be subject to ongoing review and I will swiftly intervene, with

amending legislation, to make additional provision or to correct any error

that arises from operational experience".

19 December 2012

ENDS

Note for Editors:

The Government published the General Scheme of the Personal Insolvency Bill

for consultation on 25 January, 2012. The full Bill was published on the 25

June, 2012

Since January 2012, several important submissions have been received, in

particular the Report of the Joint Committee on Justice, Defence and

Equality, and taken into account in the finalisation of the Bill. Many of

the provisions in the Bill are both complex and new in our legislation

dealing with significant issues of personal insolvency.

Debt Relief Notice

The Debt Relief Notice will permit the full write-off of qualifying debts

totalling not more than €20,000 for persons with essentially "no assets and

no income" and have no realistic prospect of being able to pay their debts

within the next 3 years.

In comparison with the comparable process in the UK and Northern Ireland,

the Personal Insolvency Bill provides significant exemptions in the Debt

Relief Notice in addition to the €400 asset test for applicants. These

exemptions are (a) €6,000 for household goods, (b) any materials or

equipment needed for educational purposes up to the end of second level

education, (c) one item of personal jewellery up to a value of €750 and (d)

a motor vehicle of up to a value of €2,000 - these latter exemptions are

subject to the proviso that the application itself does not seek to settle

the purchase cost of the item as a qualifying debt.

Applications for Debt Relief Notices will be processed through approved

intermediaries. The primary such intermediaries will be the Money Advice

and Budgeting Service. MABS has significant experience and knowledge in

regard to the devising of debt plans and of assisting persons with debt

difficulty.

Debt Settlement Arrangement

A Debt Settlement Arrangement may be negotiated between a debtor and one or

more creditors to repay an amount of unsecured debt over a period of 5

years (with a possible agreed extension to 6 years). The Debt Settlement

Arrangement would assist persons who have such income, assets and debts

that would fall outside the criteria for a Debt Relief Notice and would

have the capacity to make repayments to their creditors in return for a

discount of their debts.

Personal Insolvency Arrangement

A Personal Insolvency Arrangement may be between a debtor and one or more

creditors to repay an amount of both secured debt up to a limit of €3

million and unsecured debt over a period of 6 years (with a possible agreed

extension to 7 years). The Personal Insolvency Arrangement would assist

those persons who have difficulty in the repayment of both secured debt

(e.g. mortgage arrears) and unsecured debt. It is anticipated that the

debtor would have the capacity to make repayments to their creditors in

return for a discount of their debts.

The full operation of the provisions of the Bill is expected in the early

part of 2013. The Insolvency Service aims to open its office, launch its

website, commence an information campaign with the issuing of publications

and relevant guidelines in Quarter 1 of 2013. The regulatory and IT

frameworks required for the Service to process applications for the new

debt solutions should be in place during Quarter 2 of 2013. This will allow

for the regulation of personal insolvency practitioners. It is anticipated

that the recruitment of the specialist judges to deal with the anticipated

increased volume of insolvency work will also be accomplished in Quarter 2.