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Personal Insolvency Act 2012

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Number 44 of 2012


PERSONAL INSOLVENCY ACT 2012


ARRANGEMENT OF SECTIONS

PART 1

Preliminary and General

Section

1. Short title and commencement.

2. Interpretation.

3. Regulations and orders.

4. Expenses.

5. Appropriate court.

6. Repeals.

PART 2

Insolvency Service

7. Establishment day.

8. Establishment of Insolvency Service.

9. Functions of Insolvency Service.

10. Composition of Insolvency Service.

11. Director.

12. Staff of Insolvency Service.

13. Superannuation.

14. Strategic plans.

15. Business plan.

16. Reports by the Insolvency Service.

17. Accounts and audit.

18. Appearance before Committee of Dáil Éireann established to examine, etc., appropriation accounts, etc.

19. Appearance before other committees of Houses of Oireachtas.

20. Power to charge and recover fees.

21. Advances by Minister to Insolvency Service.

22. Restriction of Freedom of Information Acts 1997 and 2003.

23. Guidelines on reasonable standard of living, reasonable living expenses for debtors.

24. Insolvency Service may communicate by electronic means.

PART 3

Insolvency Arrangements

Chapter 1

Debt Relief Notices

25. Interpretation of Chapter 1.

26. Eligibility criteria for a Debt Relief Notice.

27. Initiation of Debt Relief Notice process.

28. Creditor consent required for issue of Debt Relief Notice in respect of excludable debt.

29. Application for Debt Relief Notice.

30. Consideration by Insolvency Service of application under section 29.

31. Referral of application to appropriate court for issue of Debt Relief Notice.

32. Contents of Debt Relief Notice.

33. Duties of Insolvency Service on issue of Debt Relief Notice.

34. Duration of Debt Relief Notice.

35. Effect of issue of Debt Relief Notice.

36. General obligations of debtor arising under this Chapter.

37. Payment by specified debtor of portion of specified debts.

38. Treatment by Insolvency Service of sums received under section 36 or 37.

39. Power to amend Debt Relief Notice.

40. Investigation by Insolvency Service.

41. Application by Insolvency Service for direction of court.

42. Application by person affected to court.

43. Creditor objection during supervision period.

44. Application by Insolvency Service to have Debt Relief Notice terminated.

45. Effect of termination of Debt Relief Notice.

46. Discharge from specified qualifying debts.

47. Approved intermediaries.

Chapter 2

Appointment of personal insolvency practitioner for purposes of Chapter 3 or 4

48. General.

49. Appointment of personal insolvency practitioner.

50. Completion of Prescribed Financial Statement.

51. Provisions relating to pension arrangements.

52. Personal insolvency practitioner to advise debtor.

53. Instruction by debtor to personal insolvency practitioner to make proposal for arrangement.

54. Statement to be prepared by personal insolvency practitioner.

Chapter 3

Debt Settlement Arrangements

55. Debt Settlement Arrangement: General Conditions.

56. Debt Settlement Arrangement permitted once only.

57. Debt Settlement Arrangement: Eligibility criteria.

58. Creditor consent required for inclusion of excludable debt in Debt Settlement Arrangement.

59. Debt Settlement Arrangement: Application for protective certificate.

60. Debt Settlement Arrangement: Consideration by Insolvency Service of application for protective certificate.

61. Debt Settlement Arrangement: Referral of application to court for issue of protective certificate.

62. Debt Settlement Arrangement: Effect of issue of protective certificate.

63. Debt Settlement Arrangement: Right of appeal as respects protective certificate.

64. Actions to be taken by personal insolvency practitioner following issue of protective certificate.

65. Mandatory requirements concerning Debt Settlement Arrangement.

66. Debt Settlement Arrangement: Non-exhaustive list of matters for possible inclusion.

67. Preferential debts in Debt Settlement Arrangement.

68. Secured creditors and Debt Settlement Arrangement.

69. Principal private residence in Debt Settlement Arrangement.

70. Debt Settlement Arrangement: Calling of creditors’ meeting.

71. Debt Settlement Arrangement: Documents to be given to creditors and the Insolvency Service when calling a creditors’ meeting.

72. Debt Settlement Arrangement: Conduct of creditors’ meeting.

73. Debt Settlement Arrangement: Voting at creditors’ meeting.

74. Debt Settlement Arrangement: Procedures for the conduct of creditors’ meetings.

75. Steps to be taken by personal insolvency practitioner following approval of proposal for Debt Settlement Arrangement.

76. Steps to be taken by Insolvency Service following notification of approval of Debt Settlement Arrangement by personal insolvency practitioner under section 75.

77. Determination of objection lodged under section 75.

78. Coming into effect of Debt Settlement Arrangement.

79. Effect of Debt Settlement Arrangement.

80. Operation of terms of Debt Settlement Arrangement.

81. General duties and obligations of debtor arising under Chapter 3.

82. Variation of a Debt Settlement Arrangement.

83. Application to appropriate court to have Debt Settlement Arrangement terminated.

84. Debt Settlement Arrangement deemed to have failed after 6 month arrears default.

85. Effect of premature termination of Debt Settlement Arrangement on debts.

86. Successful completion of Debt Settlement Arrangement.

87. Grounds of challenge by creditor to coming into effect of Debt Settlement Arrangement.

88. Debt Settlement Arrangement: Excessive pension contributions.

Chapter 4

Personal Insolvency Arrangements

89. Personal Insolvency Arrangement: General Conditions.

90. Personal Insolvency Arrangement permitted once only.

91. Eligibility criteria for a Personal Insolvency Arrangement.

92. Creditor consent required for inclusion of excludable debt in Personal Insolvency Arrangement.

93. Application for protective certificate.

94. Consideration by Insolvency Service of application for protective certificate.

95. Referral of application to court for issue of protective certificate.

96. Effect of issue of protective certificate.

97. Right of appeal as respects protective certificate.

98. Actions to be taken by personal insolvency practitioner following issue of protective certificate.

99. Mandatory requirements concerning Personal Insolvency Arrangement.

100. Non-exhaustive list of options as respects payments for inclusion in Personal Insolvency Arrangement.

101. Preferential debts in Personal Insolvency Arrangement.

102. Secured creditors and Personal Insolvency Arrangement.

103. Protections for secured creditors in Personal Insolvency Arrangement.

104. Principal private residence in Personal Insolvency Arrangement.

105. Valuation of security.

106. Calling of creditors’ meeting.

107. Documents to be given to creditors and the Insolvency Service when summoning a creditors’ meeting.

108. Voting rights at creditors’ meetings.

109. Conduct of creditors’ meeting for consideration of proposed Personal Insolvency Arrangement.

110. Proportion of creditors required to approve Personal Insolvency Arrangement.

111. Procedures for the conduct of creditors meetings.

112. Steps to be taken by personal insolvency practitioner following approval of proposal for Personal Insolvency Arrangement.

113. Steps to be taken by Insolvency Service following notification of approval of Personal Insolvency Arrangement by personal insolvency practitioner under section 112.

114. Determination of objection lodged under section 112.

115. Coming into effect of Personal Insolvency Arrangement.

116. Effect of Personal Insolvency Arrangement.

117. Operation of terms of Personal Insolvency Arrangement.

118. General duties and obligations of debtor arising under Chapter 4.

119. Variation of a Personal Insolvency Arrangement.

120. Grounds of challenge by creditor to coming into effect or variation of Personal Insolvency Arrangement.

121. Excessive pension contributions.

122. Application to appropriate court to have Personal Insolvency Arrangement terminated.

123. Personal Insolvency Arrangement deemed to have failed after 6 month arrears default.

124. Effect of premature termination of Personal Insolvency Arrangement on debts.

125. Successful completion of Personal Insolvency Arrangement.

Chapter 5

Offences under Part 3

126. False representations and omissions.

127. Breach of obligation under Part 3.

128. Concealment or falsification of documents.

129. Fraudulent disposal of property.

130. Obtaining credit or engaging in business by a debtor while insolvency arrangement is in effect.

131. Unauthorised person acting as approved intermediary.

132. Prosecution of offences.

Chapter 6

Miscellaneous

133. Register of Insolvency Arrangements.

134. Giving of notices.

135. Set-off to be applied.

136. Prescribed Financial Statement.

137. Guidelines and codes of practice.

138. Application of laws in relation to netting agreements, etc.

139. Debts in currency other than currency of the State.

140. Transmission of documents by electronic means.

141. Review of operation of Part 3.

PART 4

Bankruptcy

142. Amendment of section 3 of Bankruptcy Act 1988.

143. Amendment of section 7 of Bankruptcy Act 1988.

144. Amendment of section 8 of Bankruptcy Act 1988.

145. Amendment of section 11 of Bankruptcy Act 1988.

146. Amendment of section 12 of Bankruptcy Act 1988.

147. Amendment of section 14 of Bankruptcy Act 1988.

148. Amendment of section 15 of Bankruptcy Act 1988.

149. Amendment of section 39 of Bankruptcy Act 1988.

150. Insertion into Bankruptcy Act 1988 of new sections 44A and 44B.

151. Amendment of section 45 of Bankruptcy Act 1988.

152. Amendment of section 57 of Bankruptcy Act 1988.

153. Amendment of section 58 of Bankruptcy Act 1988.

154. Amendment of section 59 of Bankruptcy Act 1988.

155. Insertion into Bankruptcy Act 1988 of new section 65A.

156. Amendment of section 81 of Bankruptcy Act 1988.

157. Amendment of section 85 of Bankruptcy Act 1988.

158. Amendment of section 123 of Bankruptcy Act 1988.

PART 5

Regulation of Personal Insolvency Practitioners

Chapter 1

General Provisions

159. Interpretation (Part 5).

160. Unauthorised person acting as personal insolvency practitioner.

161. Regulations that may be made by Insolvency Service regarding personal insolvency practitioners.

162. Register of Personal Insolvency Practitioners.

163. Application for authorisation to carry on practice as personal insolvency practitioner.

164. Authorisation to carry on practice as personal insolvency practitioner or refusal to authorise.

165. Notification to applicant of refusal to authorise, etc.

166. Renewal of authorisation to carry on practice as a personal insolvency practitioner.

167. Notification to applicant of refusal to renew authorisation, etc.

168. Provision of information by Garda Síochána and Central Bank.

169. Appeal to Circuit Court against decision of Insolvency Service.

Chapter 2

General Obligations of Personal Insolvency Practitioners

170. Retention of records.

171. Professional indemnity insurance.

172. Fees and charges by personal insolvency practitioners.

Chapter 3

Accounts and Related Matters

173. Keeping and preservation by personal insolvency practitioner of accounts and records.

174. Control of banking accounts or assets of personal insolvency practitioners.

175. Power of Insolvency Service to deal with documents.

Chapter 4

Complaints, Investigations and Sanctions

176. Inspectors.

177. Panel of persons to act as members of Complaints Committee.

178. Complaints against personal insolvency practitioners.

179. Circumstances in which application may be made to High Court for immediate suspension of authorisation, etc.

180. Investigations.

181. Measures to assist inspector in carrying out investigation.

182. Preparation of report by inspector and consideration of matter by the Complaints Committee.

183. Appeal to High Court against determination of Complaints Committee.

184. Matters to be considered in determining sanctions to be imposed.

185. Publication of sanctions, etc.

186. Restriction of Data Protection Act 1988.

PART 6

Specialist Judges of Circuit Court

187. Amendment of Courts (Establishment and Constitution) Act 1961.

188. Amendment of section 17 of Courts (Supplemental Provisions) Act 1961.

189. Amendment of Courts (Supplemental Provisions) Act 1961.

190. Amendment of section 46 of Courts (Supplemental Provisions) Act 1961.

191. Number of specialist judges.

192. Amendment of Courts and Court Officers Act 1995.

193. Amendment of Courts Act 1977.

194. Amendment of section 10 of Courts of Justice Act 1947.

195. Amendment of section 38 of Courts of Justice Act 1924.

196. Amendment of section 66 of Courts of Justice Act 1924.

197. Amendment of Courts Act 1973.

198. Amendment of Law Reform Commission Act 1975.

199. Continuity of administration of justice not to be affected.

SCHEDULE 1

Repeals

SCHEDULE 2

Provisions applicable to Oral Hearings conducted pursuant to SECTIONS 181 and 182 .

PART 1

Oral Hearing conducted by inspector pursuant to SECTION 181 (15)

PART 2

Oral Hearing conducted by Complaints Committee pursuant to SECTION 182 (6)

SCHEDULE 3

Complaints Panel and Complaints Committees


Acts Referred to

Asset Covered Securities Act 2001

2001, No. 47

Bankruptcy Act 1988

1988, No. 27

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010

2010, No. 24

Comptroller and Auditor General (Amendment) Act 1993

1993, No. 8

Consumer Credit Act 1995

1995, No. 24

Courts Act 1973

1973, No. 26

Courts Act 1977

1977, No. 11

Courts and Court Officers Act 1995

1995, No. 31

Courts and Court Officers Act 2002

2002, No. 15

Courts and Court Officers Act 2009

2009, No. 36

Courts (Establishment and Constitution) Act 1961

1961, No. 39

Courts of Justice Act 1924

1924, No. 10

Courts of Justice Act 1947

1947, No. 25

Courts (Supplemental Provisions) Act 1961

1961, No 39

Credit Union Act 1997

1997, No. 15

Data Protection Acts 1998 and 2003

Deeds of Arrangement Act 1887

50 & 51 Vict. c. 57

Family Home Protection Act 1976

1976, No. 27

Family Law (Maintenance of Spouses and Children) Act 1976

1976, No. 11

Financial Emergency Measures in the Public Interest (Amendment) Act 2011

2011, No. 39

Freedom of Information Acts 1997 and 2003

Law Reform Commission Act 1975

1975, No. 3

Local Government (Charges) Act 2009

2009, No. 30

Local Government (Household Charge) Act 2011

2011, No. 36

Local Government Act 2001

2001, No. 37

Multi-Unit Developments Act 2011

2011, No. 2

Netting of Financial Contracts Act 1995

1995, No. 25

Nursing Homes Support Scheme Act 2009

2009, No. 15

Proceeds of Crime Acts 1996 and 2005

Property Services (Regulation) Act 2011

2011, No. 40

Public Service Management (Recruitment and Appointments) Act 2004

2004, No. 3

Public Service Superannuation (Miscellaneous Provisions) Act 2004

2004, No. 7

Social Welfare Consolidation Act 2005

2005, No. 26

Statistics Act 1993

1993, No. 21

Statute of Limitations 1957

1957, No. 6

Statutory Declarations Act 1938

1938, No. 37

Taxes Consolidation Act 1997

1997, No. 39

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Number 44 of 2012


PERSONAL INSOLVENCY ACT 2012


AN ACT TO AMEND THE LAW RELATING TO INSOLVENCY, TO AMEND THE BANKRUPTCY ACT 1988, TO PROVIDE FOR THE ESTABLISHMENT AND FUNCTIONS OF A BODY TO BE KNOWN AS SEIRBHÍS DÓCMHAINNEACHTA NA hÉIREANN OR, IN THE ENGLISH LANGUAGE, THE INSOLVENCY SERVICE OF IRELAND, AND, IN PARTICULAR, IN THE INTERESTS OF THE COMMON GOOD (INCLUDING THE STABILITY OF THE FINANCIAL SYSTEM IN THE STATE)AND HAVING REGARD TO THE FOLLOWING OBJECTIVES—

(a)THE NEED TO AMELIORATE THE DIFFICULTIES EXPERIENCED BY DEBTORS IN DISCHARGING THEIR INDEBTEDNESS DUE TO INSOLVENCY AND THEREBY LESSEN THE ADVERSE CONSEQUENCES FOR ECONOMIC ACTIVITY IN THE STATE,

(b)THE NEED TO ENABLE CREDITORS TO RECOVER DEBTS DUE TO THEM BY INSOLVENT DEBTORS TO THE EXTENT THAT THE MEANS OF THOSE DEBTORS REASONABLY PERMITS, IN AN ORDERLY AND RATIONAL MANNER, AND

(c)THE NEED TO ENABLE INSOLVENT DEBTORS TO RESOLVE THEIR INDEBTEDNESS (INCLUDING BY DETERMINING THAT DEBTS STAND DISCHARGED IN CERTAIN CIRCUMSTANCES) IN AN ORDERLY AND RATIONAL MANNER WITHOUT RECOURSE TO BANKRUPTCY, AND TO THEREBY FACILITATE THE ACTIVE PARTICIPATION OF SUCH PERSONS IN ECONOMIC ACTIVITY IN THE STATE,

TO PROVIDE FOR ADDITIONAL MECHANISMS AND ARRANGEMENTS RELATING TO INSOLVENCY TO FACILITATE THE ACHIEVEMENT OF THOSE OBJECTIVES, TO PROVIDE FOR THE APPOINTMENT, FUNCTIONS, POWERS AND JURISDICTION OF NEW JUDGES OF THE CIRCUIT COURT TO BE STYLED SPECIALIST JUDGES OF THE CIRCUIT COURT AND, FOR THAT PURPOSE, TO AMEND THE COURTS (ESTABLISHMENT AND CONSTITUTION) ACT 1961 AND THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 AND CERTAIN OTHER ENACTMENTS, TO PROVIDE FOR THE REGULATION, SUPERVISION AND DISCIPLINE OF PERSONAL INSOLVENCY PRACTITIONERS, AND TO PROVIDE FOR CONNECTED MATTERS.

[26th December, 2012]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: