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Bankruptcy Notice (Notis Kebankrapan) /Creditors Petition (Petisyen Pemiutang) in Malaysia. What to do when you received it?

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asked on Oct 22, 2020 at 20:31
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edited on Jul 26, 2021 at 10:17
 
Answer: You have to (must) attend the bankruptcy proceedings



(Caveat: The above article is written by a Q&A registered User. It represents a personal point of view not be regarded as legal advice)

To be continued...
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answered on Oct 22, 2020 at 22:43
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edited Jul 26, 2021 at 10:23
 
Bankruptcy Court Procedures:

(Application for Bankruptcy Notice)
 
Judgement Creditor (JC) makes an application (ex parte) for Bankruptcy Notice (Notis Kebankrapan). 

Once approved, the order has to be hand-served (hantar kediri) to the Judgement Debtor (JD). Once served, if no payment is received within 7 days and/or non compliance of the notice, the judgement debtor has committed an act of bankruptcy.

For the notice to be valid, the judgement debtor must be residing inside Malaysia for the past 12 months.

Documents used to support the Permintaan Mengeluarkan Notis Kebankrapan, normally include:

1. The Judgement Debt (Perintah Penghakiman);

2. The Writ of Summons (Writ Saman) from Magistrate/Session court;

3. The loan agreement;

4. Affidavit of truth of statements in petition (Afidavit Mengenai Kebenaran Penyataan-Penyataan dalam Petisyen).

Other Information: (subject to latest policies and verification)

** The Bankruptcy Notice has a validity period of 3 months.

** There is no extension of this Bankruptcy Notce Exceptions is when the person to be served is on an overseas work assignment.

** At the expiry of an un-served Bankruptcy Notice, the Creditor(s) has/have to withdraw and file a fresh Bankruptcy Notice as the amount will and can be different due to the lapse of time.

For more detailed information of Bankruptcy Notice, please read this thread started by @harapan besar: https://www.lawyerment.com/answers/questions/13825/some-issues-with-bankruptcy-notice

(Caveat: The above article is written by a Q&A registered User. It represents a personal point of view not be regarded as legal advice)

To be continued...

Next: Application for Creditor's Petition (Petisyen Pemiutang)
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answered on Oct 23, 2020 at 09:13
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edited Jul 26, 2021 at 10:26
 
@Jeff,

You mentioned:

For the notice to be valid, the judgement debtor must be residing inside Malaysia for the past 12 months.

I have three questions and I appreciate your answers.

Debtor is a Malaysian.

1) May I please confirm is it correct that the creditors are not able to proceed with lawsuit or for the notice to be valid if the debtor has just returned from overseas after spending a few years out of the country and has yet to reside inside Malaysia for more than 12 months?

2) How would the creditor know how long has the debtor been residing inside Malaysia?

3) How could the debtor find out if there has been any unsuccessful lawsuit filed or invalid notice been produced against the debtor, considering the debtor has yet to reside in Malaysia for more than 12 months since returning from overseas at this point of time?

Many thanks for your time.
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answered on Oct 23, 2020 at 11:34
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edited Jul 26, 2021 at 10:30
 
@Wai Wai

You, being an ardent and alert current daily follower of this website, I would reply only in the context of your questions (as above) so as not to disappoint you. Actually I'm not fully finished with you as you have not answered some my previous comments (to you).

My personal comments to your questions above as follow:

Q&A 1: Debtor is a Malaysian, the residency address remains as inside Malaysia unless debtor has notify the creditors (in writing and with official acknowledgement from them) of Residency Status Overseas prior to the issuance of the Bankruptcy Notice. The law require a debtor to notify all creditors of the current address and/or changes in any address. Did the debtor performed this step?

Q&A 2: To try to set aside this Bankruptcy Notice (for being overseas), debtor may have to prove it via:

a) From passport records and what is inside Malaysia immigration records (it can different).

b) A letter of certification of the residency status  from the Embassy of the country debtor just returned from.  Again it depends on what type of residency status in that country (temporary work permit, permanent residency due to marriage, etc.). Otherwise the residency status remains in Malaysia.

Q&A 3: Go back to the last residency address recorded with the creditor, to check on mails, at the same time check whether there has been a "substituted service" of the Bankruptcy Notice via major newspapers here. Go to the nearest courthouse or CTOS (even the latest CCRIS - for bank debts) to check too.

(Caveat: The above comment/s is written by a Q&A registered User. It represents a personal point of view not be regarded as legal advice)
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answered on Oct 23, 2020 at 13:16
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Thank you Jeff for answering my queries.
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answered on Oct 23, 2020 at 13:47
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edited Jul 26, 2021 at 10:32
 
@Wai Wai

Another piece of information:
(Try to understand its implications)



Do take note that laws on domicile (as in Marriages and Divorces) and laws on residency (Immigration) is different from country to country, states to states (within a country). It goes very "deep" as it also means that foreigners "residing" or having business concerns inside Malaysia can be bankrupted.

In Thailand, a foreigner who has legally married a Thai wife and residing there and when the Thai wife files for divorce, his passport "can" be compounded, his banking accounts frozen until the divorce is over. There are also cohabitation laws in Thailand which allow a Thai woman to claim alimony and living expenses from the "boyfriend". If the amount of alimony claimed (normally one lumpsum), if the foreigner boyfriend or husband cannot afford to pay, he can be bankrupted and cannot leave Thailand until his bankruptcy status is cleared or discharged.
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answered on Jan 2, 2021 at 18:16
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edited Jul 26, 2021 at 10:39
 
@Jeff,

Happy New Year 2021!

I do have a further question in relation to my previous question. For the notice to be valid, the judgement debtor must be residing inside Malaysia for the past 12 months.

What if the creditor is aware that the debtor has been residing in overseas for x number of years and yet the creditor choose to proceed with Creditor's Petition?

Creditor wasn't aware about this when filling the bankruptcy notice. However, debtor found out about the Bankruptcy Notice via substituted service, and subsequently, updating the creditor by providing documents such as residential address, contact number and EA form in overseas. Furthermore, creditor has managed to speak to debtor a few times since then.

As you know, creditor needs to include words such as "Bahawa Penghutang tersebut adalah berdomisil dalam Malaysia atau dalam mana-mana Negeri atau dalam masa satu tahun sebelum tarikh penyerahan petisyen ini telah biasanya tinggal atau ada mempunyai rumah kediaman atau tempat perniagaan dalam Malaysia atau telah menjalankan perniagaan dalam Malaysia dengan sendirinya atau melalui ejen atau, etc." when filling for Bankruptcy Notice and Creditor's Petition.

Now, I was wondering how to set aside this since what's claimed in the Creditor's Petition isn't true.

Also, since it's already Creditor's Petition stage, could the debtor also set aside the Bankruptcy Notice as it's filed less than a year prior to the Creditor's Petition? Debtor has resided in overseas for several years prior to Bankruptcy Notice. Is the setting aside the Bankruptcy Notice isn't necessary, and just proceed with only setting aside the Creditor's Petition?

Thank you for your time.
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answered on Jan 2, 2021 at 18:30
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edited Jul 26, 2021 at 10:42
 
@Wai Wai

I thought you have had asked your last question.. why so many?

I will answer this question because there were wrong interpretations by trolls that existed in this forum.

Just consider these questions as "answers":

What is your country of domicile?
Malaysia if you are holding a Malaysian Passport, right? Unless you are a dual passport holder..
Your last registered address as in your MyKad, is in Malaysia, right?
That is place of residency.

Immigration Laws

If you are working overseas with a valid employment pass, you are merely a temporary resident with temporary residency which can be revoked anytime in that country, right? One can have temporary residency in more than 2 countries, even 3, 4 especially for married and remarried ladies. There must be an expiry period.

So, if you did not change your current address as the address in the National Registration Department to overseas, you are deemed to be residing inside Malaysia.

Residency laws as in Immigration, some countries imposed a yearly reentry for those who were "residing overseas". Some benefits will be lost for non-compliance. Example: Retirement Benefits..

Example: For those on Green Card Holders in the USA, one can lose forever that status.

Maybe now you can see the situation whereby those foreigner retirees inside Malaysia are crying to go "home".
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answered on Jan 2, 2021 at 18:45
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edited Jul 26, 2021 at 10:44
 
@Jeff,

Thank you for your response. 

Let's say the debtor was on a temporary working visa in a western country for the last 5 years with a Malaysian passport, and just came back to Malaysia a few weeks ago. Identity card is based on last residential address in Malaysia.

However, the creditor was well informed about the residential address of the debtor in overseas and managed to speak to debtor while the debtor was in overseas since the Bankruptcy Notice. 

Debtor also informed creditor about how many years debtor has resided in overseas with supporting documents.

And yet, creditor still chose to proceed with Creditor's Petition while debtor was still in overseas.

Creditor used statement such as "Bahawa Penghutang tersebut adalah berdomisil dalam Malaysia atau dalam mana-mana Negeri atau dalam masa satu tahun sebelum tarikh penyerahan petisyen ini telah biasanya tinggal atau ada mempunyai rumah kediaman atau tempat perniagaan dalam Malaysia atau telah menjalankan perniagaan dalam Malaysia dengan sendirinya atau melalui ejen atau, etc." when filling for Bankruptcy Notice and Creditor's Petition.

This statement is simply misleading and false. 

Could the debtor set aside the Creditor's Petition and/or Bankruptcy Notice altogether?

This question is to help me and other readers in this forum to understand more about: for the notice to be valid, the judgement debtor must be residing inside Malaysia for the past 12 months.
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answered on Jan 2, 2021 at 19:04
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edited Jul 26, 2021 at 11:43
 
@Wai Wai

That's 2 questions in a row, I may have to impose some restrictions..!!

This is my personal comment (only):

This statement is simply misleading and false.
There are always gray areas in almost all sections of laws which is evident as in the Insolvency Act 2017, LA2018, Vesting Order (currently). Which can easily explains why I go bald after joining this website. Do keep your mind sane and by not over reading in some cases.

Once the Creditor's Petition has been issued, it is very difficult to set aside the Bankruptcy Notice application once approved. These are 2 different legal process. My personal opinion is that once you are back inside Malaysia, you cannot change the course of events.

Even if one can successfully use the 12 months status as in dual passports, the creditor can apply for the two passports to be compounded by the court. Reason: Debtor avoiding future Notis Kebankrapans.

the creditor was well informed about the residential address of the debtor in overseas 
This is merely the informing of the correspondence address. Do not mix up with MyKad address as in National Registration Department.

The definitions of Domicile, Residing, Residency, Permanent Resident varies from country to country. My personal opinion is that there is no technical mistake in the "berdomisil" status in the Notis Kebankrapan/Creditor's Petition. You can always try to use it and come back to tell us in this forum whether your tactic works or not in Malaysian Courts.

Period..
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answered on Jan 2, 2021 at 19:15
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edited Jul 26, 2021 at 11:44
 
@Jeff,

Apologies for the trouble.

My question is to find out if the debtor is able to set aside the Creditor's Petition since what is said in the Creditor's Petition isn't true due to debtor has informed the creditor that debtor has resided in overseas more than a year prior to Bankruptcy Notice, and yet creditor chose to proceed with Creditor's Petition and stated "Bahawa Penghutang tersebut adalah berdomisil dalam Malaysia atau dalam mana-mana Negeri atau dalam masa satu tahun sebelum tarikh penyerahan petisyen ini telah biasanya tinggal atau ada mempunyai rumah kediaman atau tempat perniagaan dalam Malaysia atau telah menjalankan perniagaan dalam Malaysia dengan sendirinya atau melalui ejen atau, etc." when filling for the Creditor's Petition, while debtor was still residing in overseas.
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