Courts and Civil Law (Miscellaneous Provisions) Act 2013
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Amendment of section 82 of Act of 2012 | ||
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75. The Act of 2012 is amended by substituting the following for section 82: | ||
“Variation of Debt Settlement Arrangement | ||
82. (1) Subject to this section, a Debt Settlement Arrangement may be varied in accordance with its terms. | ||
(2) A personal insolvency practitioner, whether on his or her own initiative or on a request made in accordance with subsection (3), shall propose a variation of a Debt Settlement Arrangement (in this section referred to as a ‘variation’) where— | ||
(a) it appears to the personal insolvency practitioner that there has been a material change in the debtor’s circumstances, and | ||
(b) the personal insolvency practitioner is satisfied that there is a reasonable prospect that a variation that addresses such circumstances would be approved in accordance with this section. | ||
(3) A debtor or creditor who is bound by a Debt Settlement Arrangement may request the personal insolvency practitioner to propose a variation of the Arrangement, which request shall be— | ||
(a) in writing, | ||
(b) accompanied by information or evidence to support the assertion that there has been a material change in the debtor’s circumstances, and | ||
(c) accompanied by the written consent of the person making the request to the— | ||
(i) making by the personal insolvency practitioner of an enquiry under subsection (4), and | ||
(ii) disclosure by the personal insolvency practitioner of personal data of the person, to the extent necessary for such an enquiry. | ||
(4) A personal insolvency practitioner shall, within 21 days of receipt of a request under subsection (3), decide whether paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned and, for that purpose— | ||
(a) may request any further information he or she requires from the person who made the request, and | ||
(b) may make such enquiries as he or she considers necessary in order to arrive at his or her decision. | ||
(5) For the purpose of deciding, whether under subsection (4) or otherwise, whether paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned, the personal insolvency practitioner may require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement. | ||
(6) Where the personal insolvency practitioner is satisfied that paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned, he or she shall without delay: | ||
(a) require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement, unless the debtor has completed a Prescribed Financial Statement under subsection (5) and the information contained in it remains complete and accurate, | ||
(b) formulate a proposal for a variation, | ||
(c) seek the written consent of the debtor to the proposal and to the calling of a meeting of the creditors of the debtor for the purpose of considering the proposal, and | ||
(d) where the consent of the debtor referred to in paragraph (c) has been given, arrange for the holding of the meeting referred to in that paragraph. | ||
(7) 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— | ||
(i) a written proposal for the variation of the Debt Settlement Arrangement, | ||
(ii) a report of the personal insolvency practitioner— | ||
(I) describing the outcome for the creditors and for the debtor under the terms of the proposal, and | ||
(II) indicating whether or not he or she is of the opinion that the debtor is reasonably likely to be able to comply with the terms of the Debt Settlement Arrangement as varied in accordance with the proposal, | ||
(iii) the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be, and | ||
(iv) such other information obtained by the personal insolvency practitioner under this section as he or she considers relevant; | ||
(c) lodge a copy of the notice referred to in paragraph (a) and the documents referred to in paragraph (b) with the Insolvency Service. | ||
(8) The provisions of sections 65 to 69 and sections 72 to 78 (other than subsections (2) and (3) of section 67, sections 72(4), 72(7), 73(2), 75(1)(c)(i) (as amended by section 71 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013), 76(2), 77(3), 78(2)(a)(i) and 78(5)(a) (as amended by section 73 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013)) and section 87 shall apply in relation to a variation of a Debt Settlement Arrangement under this section, subject to the following modifications and any other necessary modifications— | ||
(a) a reference to a Debt Settlement Arrangement shall be construed as a reference to a Debt Settlement Arrangement as varied in accordance with this Chapter, | ||
(b) a reference to a proposal for a Debt Settlement Arrangement shall be construed as a reference to a proposal for the variation of a Debt Settlement Arrangement, and a reference to a proposed Debt Settlement Arrangement shall be construed as a reference to a proposed variation of a Debt Settlement Arrangement, | ||
(c) a reference to a Prescribed Financial Statement shall be construed as a reference to the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be, | ||
(d) the variation of a Debt Settlement Arrangement shall not have the effect of extending the duration of that Debt Settlement Arrangement beyond the maximum duration permitted under section 65(2)(a), | ||
(e) a Debt Settlement Arrangement as varied under this section shall, in addition to containing the information referred to in section 65(2)(e), make provision for the costs and outlays of the personal insolvency practitioner which relate to this section, | ||
(f) a reference to a creditors’ meeting shall be construed as a reference to a creditors’ meeting called under this section, and | ||
(g) an adjournment pursuant to section 72(2) may occur once only in the course of a creditors’ meeting. | ||
(9) 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 day on which the vote is held. | ||
(10) Where— | ||
(a) on the taking of a vote at a creditors’ meeting under this section, the proposal is not approved in accordance with section 73, or | ||
(b) the appropriate court upholds the objection of a creditor to the variation of a Debt Settlement Arrangement coming into effect, | ||
the Debt Settlement Arrangement concerned shall, without prejudice to the other provisions of this Act, continue in effect without being subject to such variation. | ||
(11) Subsection (10) shall be without prejudice to the entitlement of the personal insolvency practitioner to propose another variation of the Debt Settlement Arrangement in accordance with this section. | ||
(12) Subject to subsection (13), an unreasonable refusal by the debtor to give his or her consent— | ||
(a) under subsection (6) to a proposal for a variation or the calling of a creditors’ meeting, or | ||
(b) under subsection (2) or (6) of section 72, | ||
shall be grounds for an application under section 83(1)(g). | ||
(13) A debtor who refuses to give his or her consent under a provision referred to in subsection (12) shall be considered to be acting reasonably where the proposal in relation to which the consent is sought would require the debtor— | ||
(a) where there has been an increase in the debtor’s income, 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 that is proposed to be varied, unless receipt of that property had been anticipated by the terms of that Arrangement. | ||
(14) A reference in this Chapter to a Debt Settlement Arrangement shall be construed as including such an arrangement as proposed to be varied or, as varied in accordance with this section, unless the context otherwise requires. | ||
(15) In this section, ‘material change in the debtor’s circumstances’ means a change in the debtor’s circumstances that would materially affect his or her ability to make payments, or otherwise perform his or her obligations, under the Debt Settlement Arrangement, and includes an increase or decrease in the extent of the debtor’s assets, liabilities or income.”. |