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Some Issues With Bankruptcy Notice

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asked on Aug 25, 2020 at 07:34
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edited on Aug 27, 2020 at 15:30
 
NOT IN ACCORDANCE WITH THE TERMS OF JUDGEMENT

SECTION 3 (1) (i) INSOLVENCY ACT 1967 


It states that a bankruptcy notice requiring debtor to pay the judgement debt in accordance with the terms of the judgement.

Examples of claim not in accordance with the terms of the judgement:

( a ) Bankruptcy Notice claims an interest of 10% p.a on judgement sum but the interest stated in the judgement is 9.5% p.a;

( b )  Bankruptcy Notice claims a late payment penalty but late payment penalty is not stated in the judgement.

Under such circumstance, the debtor can apply to court to set aside the Bankruptcy Notice on the ground that the claim stated in the Bankruptcy Notice is not in accordance with the terms of judgement.

The 7 days ruling that requires debtor to give notice to creditor within 7 days after being served the Bankruptcy Notice does not apply. Debtor's challenge can be made even after the 7 days.

Hope this thread would help those debtors who are under such circumstance.
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answered on Aug 25, 2020 at 07:53
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edited Aug 27, 2020 at 15:32
 
My own case:

Interest stated in the judgement is:

9.5% (Kadar Pinjaman Asas ketika ini [6%] + 3.5% per anum)atas dasar bulanan

But the interest stated in the Bankruptcy Notice is:

3.5% setahun di atas Kadar Pinjaman Asas dengan kiraan bulanan

I raised this issue during my appeal to the judge in Chamber, but the judge was erred in taking the two statements about interest as the same.

Being not satisfied, I appealed to the Court of Appeal, the judges of Court of Appeal ruled that the two statements are of different meaning and found out that the Responden had overcharged me (Perayu) an interest of about 9 thousands plus. Hence my appeal was allowed. 
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answered on Aug 25, 2020 at 10:55
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edited Aug 27, 2020 at 15:35
 
Section 3 (2) (ii) Insolvency Act 1967 :

THE SUM SPECIFIED IN THE NOTICE AS THE AMOUNT DUE

 EXCEEDS THE AMOUNT ACTUALLY DUE 

Example (1):

Judgement sum as stated in the Judgement: RM 60,000.00

Judgement sum as stated in the Bankruptcy Notice: RM 60,000.00

Hence, the Bankruptcy Notice is in accordance with terms of judgement.

But you later discover that the proceeds from auction sale of RM 9,000.00 is not deducted from the claim stated in the Bankruptcy Notice.

Your action:

(1) if you notify the creditor within 7 days after receiving Bankruptcy Notice about the error, then the BN will be invalidated, even if the total debt due is RM50,000 & above.

(2) if you notify the creditor about the error after the 7 days, then the Bankruptcy Notice is still valid, but the sum RM9,000.00 will deducted.

(i) if after the deduction, the total amount due is less than RM50,000.00, then the Bankruptcy Notice will be set aside;

(ii) if after deduction, the amount due is more than RM50,000.00, then the Bankruptcy Notice will not be set aside.
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answered on Aug 25, 2020 at 11:19
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edited Aug 27, 2020 at 15:36
 
HOW ABOUT PAYMENT MADE AFTER RECEIVING THE BANKRUPTCY NOTICE?

The payment made does not invalidate the Bankruptcy Notice unless the amount due after deducting the payment made is less than RM50,000.00

The payment you made after receiving the Bankruptcy Notice, may affect the 6 years limitation period.
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answered on Aug 25, 2020 at 13:35
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edited Aug 27, 2020 at 15:38
 
SHOULD I AVOID THE SERVICE OF BANKRUPTCY NOTICE?

Answer: 

If you try to avoid the service of Bankruptcy Notice, your creditor would apply for substituted service, by newspaper advertisement.

If you miss the advertisement, you would likely to miss the 7 days allowed for you to oppose the Bankruptcy Notice for claiming an amount that exceeds the actual amount. 

In another word, you have given up  the chance to invalidate the Bankruptcy Notice which claims an amount more than it should claim.
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answered on Aug 26, 2020 at 11:47
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edited May 24, 2021 at 21:51
 
MY NOTE IS NOT COMPLETE YET. PLEASE REFRAIN FROM POSTING ANYTHING HERE. POST YOUR QUESTIONS TO THE THREAD "Your Questions to Harapan Besar"
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answered on Aug 27, 2020 at 19:36
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edited May 24, 2021 at 21:53
 
GROUNDS OF JUDGEMENT(WRIT SAMAN), JUDGEMENT & BANKRUPTCY NOTICE

Do not take for granted that the material information stated in each of these documents are the same.

I have an example of real case where the judgement sum stated in the Grounds of Judgement is different from that as stated in the Judgement and Bankruptcy Notice. 

**Please refrain from posting anything here / ask question. Ask question, if any, to the thread: "Your Questions to Harapan Besar"
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answered on Aug 27, 2020 at 22:30
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edited May 24, 2021 at 21:54
 
A MYTH TO INVALIDATE BANKRUPTCY NOTICE

It is a widely held but false idea that by making a small amount of payment, such as RM20, after receiving the bankruptcy notice, will invalidate the bankruptcy notice (unless the debt after making payment is less than RM50,000.00).

If the widely held idea is true to invalidate the bankruptcy notice, then every judgement debtor will apply the same tactic and there will be no judgement debtor being made bankrupt. 

Why spend much to engage lawyer when it is so easy to invalidate the bankruptcy notice ??

*Please refrain from posting anything here / ask question. Ask question, if any, to the thread: "Your Questions to Harapan Besar"
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answered on Aug 28, 2020 at 05:52
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edited May 24, 2021 at 21:57
 
SHOULD I SKIP THE HEARING OF WRIT

I did not skip the case management and hearing of the WRIT served by bank.

Below is my experience:

My experience with the writ served by bank:

2004 - 2010:

( a )  At Session Court: The Judge dismissed the bank's application for summary judgement.

( b )  At the High Court: The judge dismissed the bank's appeal against the decision of the Session Court judge.

( c )  Full trial at Session Court. The Court allowed bank's application. I was made a judgement debtor.

( d )  The High Court judge dismissed my appeal against the decision of the Session Court Judge.

( e )  The Court of Appeal dismissed my application for leave to appeal against the decision of High Court judge.

It can be seen from my experience that I took the bank roughly SIX years to make me a judgement debtor. If I did not fight, I would be a judgement debtor (in default) in the year of 2004, instead of year 2010.

Besides that, I have in my hand the ALASAN PENGHAKIMAN which can be used later to find out whether there is any inconsistent material information between the ALASAN PENGHAKIMAN & THE JUDGEMENT / PENGHAKIMAN.

*Please refrain from posting anything here / ask question. Ask question, if any, to the thread: "Your Questions to Harapan Besar"
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answered on Aug 28, 2020 at 22:09
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edited May 24, 2021 at 21:59
 
UNDER WHAT SITUATION, THE PAYMENT YOU MADE AFTER THE ISSUE OF BANKRUPTCY NOTICE CAN INVALIDATE THE BANKRUPTCY NOTICE?

ILLUSTRATION:

1. Service is by substituted service.

2. Service is deemed to take effect on 29 May 2020.

3. Payment made on 12 May 2020, THE COURT HELD THAT BANKRUPTCY NOTICE IS DEFECTIVE.
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answered on Aug 29, 2020 at 07:17
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edited May 24, 2021 at 22:04
 
INCONSISTENT MATERIAL INFORMATION 

You need to examine carefully the relevant documents to discover inconsistent material information.

Take my own case as an example:

I have the following documents in my hand:

1. Alasan Penghakiman, Session Court;

2. Session Court's unsigned & unsealed judgement (it is stamped by court's rubber stamp but not sealed)

3. Bankruptcy Notice
    
THE FIRST INCONSISTENCY: The Judgement Sum 

1. The judgement sum as stated in the Alasan Penghakiman,Session Court: "Jumlah yang dituntut oleh Plaintif adalah RM38,137.65 setakat 20 April 2000."

2. The judgement sum as stated in both the penghakiman and Notis kebankrapan is: jumlah tuntutan sebanyak RM68,143.62 setakat Oktober, 2004 and Notis Kebankrapan.

THE SECOND INCONSISTENCY: RATE OF INTEREST CHARGED

1. There is no mention about rate of interest in the Alasan Penghakiman.

2. In the penghakiman the rate of interest: sebanyak 9.5% (Kadar pinjaman asas ketika ini [6.00 %] + 3.5% per annum)atas dasar bulanan.

3. In the Bankruptcy Notice: pada kadar 3.5% setahun di atas kadar pinjaman asas dengan kiraan bulanan.

The discovered inconsistency finally helped me to set aside the Bankruptcy Notice.
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