The Bankruptcy and Debt Advice (Scotland) Act 2014 (Commencement No. 2, Savings and Transitionals) Order 2014
| Jurisdiction | Scotland |
| Citation | SSI 2014/261 |
2014No. 261 (C. 23)
INSOLVENCY
BANKRUPTCY
DEBT
29thSeptember2014
1stOctober2014
1stApril2015
The Scottish Ministers make the following Order in exercise of the power conferred by section 57(2) and (3) of the Bankruptcy and Debt Advice (Scotland) Act 2014( 1) and all other powers enabling them to do so.
Citation and commencement
1. This Order may be cited as the Bankruptcy and Debt Advice (Scotland) Act 2014 (Commencement No. 2, Savings and Transitionals) Order 2014 and comes into force on 1st April 2015.
Interpretation
2. (1) In this Order-
"the Act" means the Bankruptcy and Debt Advice (Scotland) Act 2014; and
"the 1985 Act" means the Bankruptcy (Scotland) Act 1985( 2).
(2) This Order is to be construed in accordance with section 73 (interpretation) of the 1985 Act( 3).
Day appointed
3. The day appointed for the coming into force of the Act, insofar as not already in force, is 1st April 2015, except in respect of section 27 (recall of sequestration by Accountant in Bankruptcy) for the purpose of inserting section 17G(7) into the 1985 Act.
Savings and transitional arrangements
Sequestration before 1st April 2015
4. (1) Except as mentioned in paragraph (3) and article 6, nothing brought into force by this Order has effect as regards any sequestration in respect of which-
(a) the petition is presented before 1st April 2015; or(b) a debtor application was made before that date.(2) The 1985 Act, as in force immediately before 1st April 2015, continues to apply and have effect in relation to any such sequestration.
(3) This article does not apply as regards the following provisions of the Act-
(a) section 8 (moratorium on diligence),(b) section 12 (concurrent proceedings: recall),(c) section 20 (unclaimed dividends and unapplied balances),(d) section 22 (register of insolvencies),(e) section 24 (abolition of Edinburgh Gazette requirements),(f) section 25 (directions),(g) sections 26(1)(a), (2) and (3) and 27 (recall of sequestration),(h) section 34 (conversion of trust deed into sequestration),(i) sections 38 to 43 (review of decisions made by Accountant in Bankruptcy),(j) section 48 (renewal of inhibition period),(k) section 49 (division and sale of family home),(l) section 50 (effect of debtor discharge), and(m) in schedule 3-(i) paragraph 3(a) (moratorium on diligence and register of insolvencies),(ii) paragraphs 12 and 13 (expiry of inhibitory effect sequestration: recall),(iii) paragraphs 25 and 26 (review by Accountant in Bankruptcy of adjudication of claims),(iv) paragraph 31 (unclaimed dividends and unapplied balances), and(v) paragraph 35(b), (c) and (e) (definitions of "common financial tool", "DAS register", "debtor contribution order" and "debtor's contribution").(4) For the purposes of paragraph (1) the bankruptcy restrictions undertaking of a debtor is treated as sequestration of that debtor( 4).
Money advice
5. (1) A debtor application signed by the debtor before 1st April 2015 may be made on or after that date notwithstanding that the debtor has not obtained money advice in accordance with section 5C of the 1985 Act( 5).
(2) To that extent it is to be treated as an incomplete application under section 11A(1) of the 1985 Act( 6).
Common financial tool
6. (1) This article applies to sequestrations to which article 4(1)(a) or (b) applies, unless they meet the conditions under section 5A of the 1985 Act (low income, low asset debtors)( 7).
(2) Where an application is made on or after 1st April 2015 for variation of-
(a) an income payment order, under section 32(4) of the 1985 Act; or(b) an income payment agreement, under section 32(4G)(b) of that Act on a change in the debtor's circumstances,the sheriff must have regard to the common financial tool( 8).
(3) Where on or after 1st April 2015 a trustee is considering entering into a written agreement to vary an income payment agreement under section 32(4G)(a) of the 1985 Act on a change in the debtor's circumstances, the trustee must have regard to the common financial tool.
(4) In so applying the common financial tool, it is modified as follows-
(a) regulations made under section 5D of the 1985 Act (assessment of debtor's contribution)( 9) apply as if for any reference to variation or removal under section 32F of the 1985 Act( 10) there were substituted a reference to variation or recall under section 32(4) of the 1985 Act; and(b) any provision of those regulations in pursuance of section 5D(3) to (6) of the 1985 Act (assessment of debtor's contribution) does not apply( 11).(5) For the avoidance of doubt this article does not prevent a sheriff or trustee having regard to other factors, including the amount initially determined by the order or provided for in the agreement (or any extant variation of either).
(6) The introduction of the common financial tool is not itself a change in the debtor's circumstances for the purposes of this article (or section 32(4) of the 1985 Act).
Moratorium on diligence
7. Notice received by the Accountant in Bankruptcy on or after 1st April 2015 which is-
(a) in accordance with section 4A(1) or 4B(1) of the 1985 Act( 12) (notice of intention to apply for sequestration, protected trust deed for debt payment programme); and(b) in the form required under the 1985 Act from that date( 13),has effect as if given on 1st April 2015 notwithstanding that it was given before that date.
Recall of sequestration
8. Section 24(1) (replacement of Edinburgh Gazette recall requirement) of the Act does not apply to a petition for recall of sequestration presented before 1st April 2015.
Applications for trustee directions
9. Section 25 of the Act (application for trustee directions) does not apply to any application to the sheriff for directions made before 1st April 2015 (and any appeal from any such direction).
Review of decisions by Accountant in Bankruptcy
10. (1) The amendments in sections 38 to 42 of the Act (review of decisions by the Accountant in Bankruptcy) relevant to review by the Accountant in Bankruptcy of the following decisions of the Accountant in Bankruptcy do not apply-
(a) to a determination notified before 1st April 2015 under section 13A(10)(b) (certificate of interim trustee discharge), or where notice is sent before that date under section 13B(4)(a)(iii) or (b) (discharge of Accountant in Bankruptcy as interim trustee), of the 1985 Act( 14),(b) to a direction given under section 18(1) (direction for interim preservation of estate) of the 1985 Act( 15) before 1st April 2015,(c) to a refusal to award sequestration under section 15(3A) (debtor application) of the 1985 Act( 16) before 1st April 2015,(d) where notice is sent before 1st April 2015 under section 26A(3) (discharge of Accountant in Bankruptcy as trustee) of the 1985 Act( 17),(e) to a determination notified before 1st April 2015 under section 27(3)(b) (certificate of original trustee's discharge) of the 1985 Act( 18),(f) to claims accepted or rejected in a list sent before 1st April 2015, or notification given before that date, under section 49(2A) or (4) respectively...To continue reading
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