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Frequently
Asked Questions (FAQ)
Listed below are
some of our most commonly asked questions. A further list is available
of frequently asked questions on the
Enterprise Act 2002. For further information you may find
the information you are looking for in one of our publications.
There is also a
page of frequently asked questions
on the Online Forms Service.
Please click on the relevant question to
find a brief answer. If your question
is not listed please e-mail your query to our Insolvency Enquiry Line at
, click here
for an online form.
Can
the Official Receiver or his staff give advice as to whether it is
appropriate for an individual to file his petition in bankruptcy?
Can
the Official Receiver and his staff advise whether it is appropriate for
an individual director to petition to the court for a
winding-up order against a company in which he/she has an interest?
I
have obtained my discharge, but am still unable to obtain credit, as my
name is included on a credit reference agency's records. Will the
Official Receiver arrange for the removal of the listing as I now have
my discharge?
How
do I make myself bankrupt?
How
do I make someone else bankrupt?
Can
I have a bank account?
Can
a bankrupt still trade?
I
am an employee of an insolvent. Am I allowed to claim wages?
When
will I be discharged?
How
do I obtain a certificate of discharge?
How
do I apply for a job with The Insolvency Service?
If I am made
bankrupt, will I still have to repay my student loan?
Can I make
myself bankrupt in England if I live abroad?
What is a
centre of main interest?
I
do not live in England and Wales but in another European Union Member
State where I have a lot of debts.
Can I go bankrupt in England or Wales and write off the debts in
the country where I live?
If my house is sold
sometime after the bankruptcy order is any shortfall on the mortgage
still a debt in my bankruptcy?
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Question |
Can
the Official Receiver or his or her staff give advice as to
whether it is appropriate for an individual to file his or her
petition in bankruptcy? |
| Answer |
The
Official Receiver and his or her staff cannot give advice as to
whether or not an individual should file his or her own petition
in bankruptcy. If that individual needs independent advice, then
they should consult a solicitor, accountant, licensed insolvency
practitioner, Citizens Advice, or another suitable person.
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|
Question |
Can
the Official Receiver and his or her staff advise whether it is
appropriate for an individual director to petition to the court
for a winding-up order to be made against a company in which
he or she has an interest? |
| Answer |
The
Official Receiver and his or her staff cannot advise directors as
to whether it is appropriate for them to seek a Winding-up Order
against a company in which they have an interest, but they should
approach a solicitor, accountant, licensed insolvency practitioner
or Citizens Advice to get independent advice.
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|
Question |
I
have obtained my discharge, but am still unable to obtain credit,
as my name is included on a credit reference agency's records.
Will the Official Receiver arrange for the removal of the listing
as I now have my discharge? |
| Answer |
The Insolvency
Service has no regulatory responsibility for credit reference
agencies and cannot assist directly in the correction of
information held. If you have any questions about the operation of
the agency or its listing policy please contact that agency.
Although credit reference
agencies will update their records upon receipt of a certificate
of discharge, a bankruptcy order is kept on the credit
reference agencies' files for six years from the date the order
was made.
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|
Question |
How
do I make myself bankrupt? |
| Answer |
Go
to the court within whose jurisdiction you live, obtain the forms
and find out how much the fee will be. Fill out the forms and
return to court with the fee payable. Above all take advice before
you take what is a very major step.
You may
also find it helpful to read the Insolvency Service publication "Dealing
with debt - How to petition for your own bankruptcy".
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|
Question |
How
do I make someone else bankrupt? |
| Answer |
Instruct
a solicitor, but be aware that this is likely to cost you £1500.
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| Question |
Can
I have a bank account? |
| Answer |
There
is nothing in the insolvency legislation which prevents a bankrupt
from holding an account, but you should tell the bank or building
society that you are bankrupt, since they may wish to impose
conditions and limitations e.g. not allow a cheque guarantee card.
You should not obtain overdraft facilities without telling the
bank that you are bankrupt.
You may
also find it helpful to read the Insolvency Service publication What
will happen to my bank account?
Note: it is the
bank's decision as to whether to allow an account to be opened by
the bankrupt.
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| Question |
Can
a bankrupt still trade? |
| Answer |
If
you are bankrupt you are still allowed to earn a living, and can
do this by being self-employed or by carrying on a business, as
long as you do not disobey the law by obtaining credit of £500 or
more without disclosing that you are an undischarged bankrupt, and
as long as you do not use another name unless you tell those with
whom you trade of the name under which you were adjudged bankrupt.
If you earn more than sufficient to meet the reasonable domestic
needs of yourself and your family, the Official Receiver may apply
for an Income Payments Order (IPO).
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| Question |
I
am an employee of an insolvent. Am I allowed to claim wages? |
| Answer |
The
Redundancy Fund may pay claims for unpaid wages, holiday pay and
wages in lieu of notice, up to certain prescribed limits, and
redundancy claims. The Official Receiver will provide copies of
the claim forms and an explanatory publication.
Note: our Redundancy
Payments Directorate are responsible for processing and agreeing
the claims.
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| Question |
When
will I be discharged? |
| Answer |
If
the bankruptcy order was made on or after 1 April 2004 the
automatic discharge date is one year.
If the
bankruptcy order was made before 1 April 2004 different rules
apply, full details of which are set out in the publication 'Changes
to Bankruptcy Law under the Enterprise Act 2002'.
Note: Your discharge
may be suspended if you have failed to carry out your duties under
The Insolvency Act.
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| Question |
How
do I obtain a certificate of discharge? |
| Answer |
You
should write to the court where you were adjudged bankrupt quoting
your most recent case reference.
Note: the court fee
for a certificate of discharge is £60.
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| Question: |
How
do I apply for a job within The Insolvency Service? |
| Answer: |
Managers
within the The Service have responsibility for recruiting their
own administration staff and place advertisements initially in the
local job centre. Jobcentres can tell you of any current
advertisements.
Recruitment
of Trainee Examiners is undertaken centrally and takes place
annually. You can get advice about examiner recruitment from
Christine Williams, The Insolvency Service, Human Resources, Room
G03, 21 Bloomsbury St, London WC1B 3QW, telephone 020 7291 6884.
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| Question: |
If
I am made bankrupt, will I still have to repay my student loan? |
| Answer: |
Yes.
Since 1 September 2004 all outstanding student loans cannot be
claimed in bankruptcy. They remain the responsibility of the
(former) student to repay within the terms of the loan
arrangement.
If you were made bankrupt
before 1 September 2004 you may still have to repay your student
loan. Clarification should be requested from the Official Receiver
who is dealing with your affairs.
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| Question: |
Can
I make myself bankrupt in England if I live abroad? |
| Answer: |
Yes.
If you are living in an EU member state, except Denmark, you must
show to the Court that your centre of main
interest is in the UK. If you live in another part of the
World you can present a bankruptcy petition in England if:
(a)
you are personally present in England and Wales on the day you
present your petition for bankruptcy to the Court, or
(b)
if you have lived or carried on business in England and Wales in the
previous three years.
The
country in which you live may not recognise the bankruptcy
proceedings and creditors may still be able to take action against
you in the country you live in.
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| Question: |
What
is a centre of main interest? |
| Answer: |
Under
the EC Regulation on Insolvency Proceedings if you live in a member
state, except Denmark, you can only open insolvency proceedings
(make yourself bankrupt) in the country where you have your "centre
of main interest".
There is no definition of a centre of
main interest but the Court will usually regard the country where
you carry on a business or earn your living as your centre of main
interest. The Court will also consider the place where you normally
live, i.e. your country of habitual residence. If you are not
employed or self-employed your centre of main interest will be the
country you normally live in at the date of the petition.
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| Question: |
I
do not live in England and Wales but in another European Union
Member State where I have a lot of debts.
Can I go bankrupt in England or Wales and write off the debts
in the country where I live?
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| Answer: |
If you are
living in a European Union Member State (except Denmark) a
bankruptcy order made in England and Wales will be accepted in all
EU countries. Before the Court will make a bankruptcy order you must
show that your "centre of main interests” is in the UK.
The court will
usually regard the country where you carry on a business or
otherwise earn your living as your centre of main interests.
If you are not employed or self-employed your centre of main
interests will be the country you normally live in at the date of
the petition.
Therefore if
you do not live or work in the UK you cannot go bankrupt in England
and Wales.
If you intend
to re-locate to the UK and establish your centre of main interests
here, to take
advantage of personal insolvency legislation, you should be aware
that the official receiver will investigate the truth of your move.
If your re-location is only temporary or false, for example if you
continue to work in the country where you now live, the Court can
rescind (remove) the bankruptcy order.
If you live in
Denmark (or another part of the world) you can make yourself
bankrupt in England and Wales if:
(a)
you are personally
present in England and Wales on the day you present your petition
for bankruptcy to the court, or
(b)
if you have lived or
carried on business in England and Wales in the previous three
years.
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| Question:
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If my house is
sold sometime after the bankruptcy order is any shortfall on the
mortgage still a debt in my bankruptcy? |
| Answer:
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A debt which is secured by a
mortgage or a charge on a property is still a provable bankruptcy
debt. The mortgage loan company is "a secured creditor"
which means they have rights over an asset, the
house, and can require the asset to be sold to pay their debt. These
rights are not affected by the bankruptcy.
On the making of a bankruptcy
order the mortgage loan company could
make a claim in the proceedings but, unless it wished to give up the
security, could only claim for any (estimated) shortfall.
If you continue to live in the
property it is likely that you will continue to make payments to the
mortgage loan company to avoid the property being re-possessed. When
the property is eventually sold any
shortfall to the mortgage loan company is still a provable debt in
the bankruptcy, even if you have been discharged, as you are
released from the debt on discharge.
Your bankruptcy does not affect the obligations of any joint owner
who has not been made bankrupt to repay the mortgage loan debt or
any shortfall, as they are still liable for the whole of the debt.
After the date of the bankruptcy order the mortgage loan creditor
may ask you to sign a "deed of acknowledgment" of the
outstanding debt. If you have signed such a deed the mortgage loan
creditor can take action against
you to recover any shortfall following the sale of the property.
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