FAQs | Applying for Bankruptcy
No, but you will be exposed to your creditors pursuing recovery of the debt through the courts. Once a creditor has a court judgment debt, your wages can be garnished, your assets can be taken from you and sold at auction without reserve and the creditor can have you examined before the court in regard to your financial affairs. If you are unable to pay your debts and want to protect yourself from your creditors you can file for bankruptcy or propose a Debt Agreement or propose a Personal Insolvency Agreement (PIA).
Make no bones about it, we recommend bankruptcy as when you become bankrupt you are immediately released from all debts caught by your bankruptcy. What is more, you can file for bankruptcy without needing approval from your creditors, your wages are protected during bankruptcy to ensure you have money to live and you can safely save from your wages.
From our experience, to resolve the debts you just cannot pay it is critically important that you are released from your debts upfront and your wages are protected for you to have sufficient money to live. With bankruptcy if you should have an accident or become sick you are safe; you have been released from your debts without condition. If you are a high-income earner, paying income contributions – you have the comfort of knowing that if you should lose your job, the requirement to pay income contributions will stop as soon as your income drops below the income threshold.
Bankruptcy gives you the comfort of knowing that your financial problems have been resolved without condition.
You do have options other than bankruptcy. You can enter into a Part 9 Debt Agreement. This is a legally binding agreement between you and your creditors. To enter into a Debt Agreement, you need to be able to negotiate to pay off a percentage of your combined debt over time. To do this you need to propose a Debt Agreement to your creditors and your creditors must agree for you to put a Debt Agreement in place. You will have to pay an upfront fee to cover the cost of proposing the Debt Agreement to your creditors. Once a Debt Agreement is in place you will have a Debt Agreement administrator to receive your payments under the debt agreement and make payments to your creditors. The Debt Agreement administrator is typically paid near 25% of the payments you make under the Debt Agreement. A tax of 7% of your payments is paid to the government and the balance is paid to your creditors. We do not recommend Debt Agreements because your debts are not extinguished until the final payment has been made whereas a bankruptcy will clear your debts immediately.
Debt Agreements require you to continue making repayments and this means that your financial stress will continue. Further many people get too keen and do not leave themselves with sufficient money from their wages to live and pay their normal living bills. They then find that they are unable to survive on the money they have left after the repayments have been made, and after a period of financial stress, they have the Debt Agreement terminated and file for bankruptcy. The other thing that we do not like about Debt Agreements is that if you should become ill or lose your job, you are still required to make the Debt Agreement payments. For the payments to be reduced your creditors must agree to your request and if you are unable to make any payments your Debt Agreement will be terminated, returning you to having no protection from your creditors.
The second option is a Personal Insolvency Agreement (PIA) also known as a Part 10 Agreement which is a legally binding agreement between you and your creditors. A PIA requires you to appoint a Controlling Trustee who will take control of your property and submit your offer to your creditors. This option is not very popular due to the costs involved. Further, when you appoint a Controlling Trustee you will lose control over your assets, and appointing a Controlling Trustee is an Act of Bankruptcy. We rarely recommend a Part 10 as you are not released from your debt till you have fully complied with the terms of the Part 10. Further, your proposal must be approved by your creditors which involve you attending a meeting of creditors. Over the years we have observed that some people get into negotiations with their creditors and end up agreeing to pay more than they can afford. Further, if circumstances change, alteration to the terms of the Part 10 must be approved by creditors and failure to meet the terms of the Part 10 will result in the Part 10 being terminated returning you to having no protection from your creditors.
To properly consider your options and how each option would work for you, we recommend that you give us a call on 1300 060 122 or email firstname.lastname@example.org for a chat about your circumstances and what you are wanting to achieve.
Nicholls & Co have a complementary ‘help desk’ to answer your questions on bankruptcy. Call Nicholls & Co on 1300 060 122 or email email@example.com.