What's the impact of bankruptcy? Can bank reject AKPK proposal?

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asked on Apr 7, 2015 at 15:13
edited on Aug 24, 2016 at 04:30
Currently I undergoing the bankruptcy process with Bank X due to hire purchase. I tried my best to find ways to avoid bankruptcy with some proposal which I need some advice and miracle ideas from this group. I would much appreciate that.

I had a house (2 owners, me and my mom) which also loan under the same Bank X. I have paid up and transferred the ownership to my mom and my brother 8 months ago, which my mom has fully paid with her and my brother's money.

My questions is as below:

1. What would be the impact to this house if I am being adjudged a bankrupt?
2. What is the impact to my spouse and children's if I am a bankrupt?

Here's my scenario:

Car: NAZA Ria 2.5cc Special Edition

- 1st case for 'tuntutan baki pinjaman.'
I attended the court case and requested the court to auction the car (which at the moment I have surrendered for volunteer repossession) and I told the judge that I would pay the balance.
- Penghakiman (Judgment) on the date was, defendant 'perlu bayar tuntutan Affin Bank.'

I found out that the car which has a value of RM40,000 was auction under value of RM8,000, which I did not receive any Schedule 4 or 5.

I have made complaint to Bank Negara, and I wrote several emails. According to Affin Bank, the car was auctioned under value due to:

1) Part of the engine missing and the engine is not the same as in the grant.
2) Gear box missing.
3) Computer board missing.

I made a police report that "Suspect of Kes Jenayah" under the advice of the Bank Negara Officer.

Got the "Laporan Siasatan." They found "Tiada Kes Jenayah" in other word, there are no items missing from the car. Police recommended me to files a civil suit against Affin Bank.

Case hearing "Di hadapan Timbalan Pendaftar."
I have requested for time to prepare some document, next case hearing on 20-04-2015.

Went to AKPK and seek help there. Since the Creditor's Petition (CP) is fully served (according to the bank), AKPK has put me under "Metric 2" (proposal for those case under legal proceeding, mainly bankruptcy) said I had 50% / 50% chance only on this matter. Where bank can reject AKPK proposal.

I have been told by AKPK officer that I will only get the reply from the bank after 21 days.
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answered on Apr 22, 2015 at 03:39
edited Aug 24, 2016 at 07:04
@ Mr. Murusk

Timbalan Pendaftar, just answered the lawyer with 1 sentence, "tarik balik order". This time my mind got freak out again (this time, like I got my life back), and I have asked the Timbalan Pendaftar few silly questions. She (Puan) smiled only without answering my question. This part let me share with you all during meeting.
I am attending my own bankruptcy case on May 18th. I am staying in Batang Berjuntai and cannot attend your meeting. Please share your strange encounter in the high court here in this forum so that I can prepare myself on that morning.

Thanking you in advance
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answered on Apr 22, 2015 at 16:37
edited Aug 24, 2016 at 07:08

Seems like your case is very late and very difficult to fight. I suggest you stop the fight and let yourself become a bankrupt. Since you have no more assets, there is no need to be afraid of bankruptcy.

a. No need to declare to Jabatan Insolvensi Malaysia (JIM) about your house already transfer name.
b. Open a Joint Bank Account with your wife or relative before becoming a bankrupt. (Bank Simpanan Nasional (BSN) also can)
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answered on Apr 22, 2015 at 19:02
edited Aug 24, 2016 at 07:14
@ Jeff
Don’t listen to anyone.
Answ: This is for those whom don't have trusted and resourceful person like you. Thank for being there.

Could it be the workshop removed the gearbox when they dismantled the engine?
After all, the gearbox is connected to the engine.
Answ: I have put this person under police investigation. 

Can you get a workshop mechanic to agree to testify in Court that the gearbox, computer and air-con were intact in the car at the time when it was repossessed by the bank?
Answ: He is ready to be called to court to testify.
Because I had told him, by any mean I will get the person to pay my parts missing.

P.S. This is the only way I can show the court that I have returned the car with all the parts.

Under Hire Purchase Law and 'tarik' regulations, the repossession has to been done in the presence of the Hirer/Driver or "second driver" as stated in the insurance policy. They can't 'tarik' a parked vehicle without the owner/driver around, am I on the right track?
Answ: Correct the car was parked in front of the workshop, bank agent 'TARIK' the car without informing the workshop.

@pied piper
Sorry to hear that. Your case scheduled to be heard in the "timbalan pendaftar / pendaftar @ kamar"?

Thanks for your advice, in the same time I prepare the payment schedule, which until now the bank rejecting.

@All Forumers
I have my company account (enterprise) which currently have my name only. Can I add my wife name too. In-case bankrupt, can Jabatan Insolvensi Malaysia (JIM) touch this join account? or do I need to remove my name from there?

Which is safe on the event of bankruptcy?
1. Joint account of me and my wife?
2. Just my wife name?

Please advice.

I still want the bank to be responsible for my car under action lost which I preparing now. At the same time I also trying to prepare a payment proposal, in-case. Even I start to pay, I still will file the case.
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answered on Apr 22, 2015 at 19:56
edited Aug 24, 2016 at 07:17
Option 1
Wife register new company and take over all the clients

Option 2
Put wife name in current sole proprietorship to make it a partnership now and pull your name out later a few weeks later. Your customers do not know, the banks do not know, and need not declare in Jabatan Insolvensi Malaysia (JIM) as at date of Adjudication Order and Receiving Order (AORO), you do not have any businesses.

It all hinges on how strong your civil case against the bank and also how your proposal to repay your debt to avoid being bankrupted.
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answered on Apr 22, 2015 at 20:19
edited Aug 24, 2016 at 07:18
@All Forumes

Since I met the workshop person last Monday, I will amend the existing Statement of Claim (SOC).

Info to be amended:
1. The car was towed from the workshop without the workshop owner's knowledge.
2. There was no acknowledgement document handover to the workshop person nor to the owner during the car tow.
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answered on Apr 22, 2015 at 21:13
Is that guy willing to testify in court?
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answered on Apr 22, 2015 at 23:54

Just want to add a few things:

1. The insurer who valued your "car" was based on an acceptable running condition and perhaps to attract higher insurance premium especially for cars still under financing which must cover a little bit more than the balance outstanding. Therefore this value cannot be used in your claim.

2. I believe that your car is in the midst of repair with parts dismantled during that time and at that point of time, honestly, how much do you think it is worth? Very difficult to prove unless you have photos of the parts WHEN you left the workshop when the tow truck and the Bank Officer were at the scene.

3. How far is the car from the workshop? Can it still be considered the "compound" of the workshop by the definition of the local council? And you said the car was only towed 6 months later. Correct me if I am wrong.

4. Considering the above, there are three possibilities:

(a) The workshop being fed up with no payment, decided to put the car outside so the operator can have   space to work on other paying customers. The workshop operator may have decided to "salvage" some parts to "cover" his cost. (I am not accusing him but this is the questions that will be raised, so be prepared)

(b) The Bank towed the car with all the parts intact and will put the car in their panel storeyard. The standard procedure will be inspection of the vehicle by the Bank complete with items found in the car, defects and missing parts. Photographs would have to be taken and I bet for this kind of case, there will be plenty to "cover their asses". Upon arrival at the storeyard, the storeyard operator will again inspect the car with their own report and photos also to "cover their asses". These reports must be identical otherwise there is something wrong. Not that it happens often (if the operator is smart) but some parts may have been stolen at the storeyard but proving this is very difficult.

(c) Since the car was parked outside, some "creative" people may have broken into the car and stole the parts. Unless the workshop has a state of the art cctv with infra red capability during the six months period, the Bank and workshop operator were "innocent" of any wrongdoings and the car was taken the way it was. 6 months is a long time. Leaving the car overnight can lead to many things let alone 6 months.

As I said before, the auction of the car was based on "as is where is" basis and even with all the missing parts intact but unrepaired, it will not fetch a good value based on its condition and "repossessed" name tag. You may argue that the Bank has failed to notify you on the auction, but they may counter your argument by saying that they have terminated the Hire Purchase Agreement during the Legal Action, so they are not obliged to follow the Hire Purchase regulation any more. Furthermore, you are NOT the OWNER, the Bank owns the car, you are only a Hirer who is supposed to pay the monthly instalment.

If you believe the workshop operator is innocent of any wrongdoing, you may invite him to sue the Bank for the amount "unpaid" being the storage charges for the car and partial repair done. This is because the car was under his "custody" and he has "lien" over the car and he must be paid his dues whether from you or the Bank. However, it may not be to your advantage as this will be added to your debt by the Bank. Or will he be able to testify and endure the "grilling" by the Bank's lawyers and stick to his story?

I am not discouraging you from taking the action but merely pointing out the hard facts that will be raised by the Bank's lawyers with the typical response like "Hanya cuba membuang masa Mahkamah yang mulia ini dengan mengemukakan alasan alasan yang tidak munasabah tanpa bukti yang kukuh". It may drag the matter for a while even though it is not impossible but very difficult to prove negligence.

Just my two cents having been on "the other side". Well I hereby open the floor to those who can contribute positively to this case. Good luck.
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answered on Apr 23, 2015 at 01:30
You may argue that the Bank has failed to notify you on the auction, but they may counter your argument by saying that they have terminated the Hire Purchase Agreement during the Legal Action, so they are not obliged to follow the Hire Purchase regulation any more. Furthermore, you are NOT the OWNER, the Bank owns the car, you are only a Hirer who is supposed to pay the monthly installment.

Actually under the Hire Purchase Act, the owner ( Bank ) must provide Fourth Schedule ( Jadual Keempat ) and Fifth Schedule ( Jadual Kelima ) to the Hirer after repossession. This is mandatory.
The owner must also give Notice of Auction at least 14 days before each auction date.
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answered on Apr 23, 2015 at 01:52
edited Aug 24, 2016 at 07:39
Bro @Abu Ammar

All kinds of trades have their "CYA (Cover your ass)" principles.. All these are their standard operating procedure (SOP). I started from Forensic Audit of Frauds, construction standards, manufacturing standards and ended with cleaning standards, all have their own sets of SOP for "CYA". It is basic knowledge of laws that affects everybody, everyday, every minute, that we often neglect and these are the issues affecting our society nowadays. Basic Law studies should be included in the educational coco from secondary school onward..

Murusk Case:-

From the initial scant info till now, with so much "loopholes" dug out now, unless there is a need to delay the bankruptcy proceedings for the purpose of the property sold to exceed the 2 years limit, it would be prudent to "offer" the peace pipe and seek for realistic repayment schedule with the bank to avoid being bankrupted. Am optimistic that with the "help" from the Judge plus AKPK, it can be done. Too young to be bankrupted and being an IT professional, 'cari makan tak susah masih sekarang.'

From the surface, I am too, very disappointed with the car sold at 20% of market value, can say being "ripped off" but for the stated time frame, the 'tidak apa' attitude due to carelessness of the HIRER, nothing much can be done to reverse this bad unfavorable situation.

It is hope that young professionals newly entering the workforce, if reading on this particular thread and THREAT, be fully aware of impeding consequences of defaulting bank loans if living beyond their means..

Thanks bro again for the eye opener..
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answered on Apr 23, 2015 at 01:53
edited Aug 24, 2016 at 07:23
Fourth Schedule must be issued prior to Repossession Order under normal circumstances. Fifth Schedule is normally issued AFTER repossession. In this case, the Fourth Schedule must haves been issued countless times prior to the legal action. Arguably, this is "voluntary surrender" but taken away 6 months later under mysterious circumstances as why it took so long for the Bank to take possession. The Hire Purchase Act is not very specific in terms of Fifth Schedule service after legal action but do provide for the power for the court to vary the judgment sum after resale. Of course some Banks will play "safe" by giving the Fifth Schedule anyway but as I say, they may argue on the point of termination of the agreement by the Letter of Demand and Termination of agreement. Still open for argument.
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