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Bankruptcy

5. Debt Agreement Process

Authors: Kelly Angus
Firm / Chambers:
Last updated: 22 Jun 2015
    5. Debt Agreement Process
  • There are several stages to the debt agreement process.
  • The first stage is obtaining information and lodging forms.
  • You must read and sign documentation regarding the consequences of bankruptcy, debt agreements and other alternatives.
  • You must also decide whether to appoint an administrator or to administer the agreement yourself.
  • An administrator will charge a fee for their services but can provide assistance to you by:
    • providing you information about your options and negotiating with your creditors;
    • determining the extent of your debt;
    • helping you to draft a debt agreement proposal that is appropriate to your financial situation; and
    • assisting you with the filling out of forms to be lodged with the Australian Financial Security Authority (AFSA).
  • Three forms are required:
    • your debt agreement proposal;
    • an explanatory statement setting out your financial position and the cause of your financial problems; and
    • a statement of affairs detailing your personal information and circumstances.
  • The second stage is lodging your proposal.
  • Your proposal must be completed and lodged with AFSA within 14 days of you signing it.
  • A certificate signed by the administrator must accompany all proposals. The certificate must state that the administrator:
    • has given you all of the required information;
    • believes you are able to make the proposed payments; and
    • believes you have accurately described your affairs.
  • If you are administering the proposal yourself you do not need to provide a certificate. You must provide AFSA with a signed copy of the prescribed information when you lodge your proposal.
  • The relevant forms can be downloaded at http://www.afsa.gov.au.
  • The third stage is sending the proposal to creditors for consideration and voting.
  • Upon lodgement of the forms and payment of the lodgement fee your proposal is reviewed to ensure it satisfies the eligibility criteria.
  • If your proposal is accepted for processing it is recorded on the National Personal Insolvency Index (NPII).
  • Each creditor is sent:
    • a report;
    • copies of your proposal;
    • copies of your explanatory statement;
    • a statement of claim; and
    • a voting form.
  • Creditors vote on the proposal by returning the statement of claim and voting form by the specified deadline.
  • For your proposal to be accepted a majority in value of creditors who vote must vote ‘yes’.
  • If your proposal is accepted your proposal becomes a debt agreement.
  • If creditors reject your proposal or if no creditors vote then creditors can commence or continue recovery action against you.
  • If your proposal is withdrawn by you or is cancelled by AFSA then creditors can commence or continue with action to recover their debts.
  • The NPII is updated when your proposal is accepted or rejected and if your proposal is withdrawn or cancelled.
  • The final stage of the process requires carrying out the debt agreement.
    • If creditors accept your proposal you must comply with its terms.
    • If you experience difficulty making payments you should let your administrator know as soon as possible.
    • Your administrator will:
      • collect payments;
      • keep you and your creditors informed;
      • pay dividends to your creditors; and
      • advise AFSA when the agreement is completed.
  • If you think you may need legal advice you can use our free Find a Lawyer directory to contact a lawyer near you.

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