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Bankruptcy and seeking justice

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asked on Nov 21, 2021 at 15:37
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Hi

I was charged as a bankruptcy since Oct 2013 due to unable to pay my housing loan with Affin Bank.
In 2014, I managed to sell my condo in Ampang, which still have remaining loan balance with the Financier. I have informed Insolvency about it, on 23 June 2014, Insolvency have send a letter to the buyer lawyer informing that for any excess money from the selling transaction, the buyer/lawyer should handover the money to Insolvency. On 5th Feb 2015, I received an email from the buyer lawyer with a letter attachment asking me to settle some dues to them (legal fees and some other stuff) amounting RM 4,590. In the same letter, they mentioned that " We shall only forward the balance sum to the Department of Insolvency upon fulfillment of all the above".

I have informed Insolvency on this and forwarded them the copy of the letter so that they can execute the next action. I trusted Insolvency will do their job and responsibilities. After 1 year, I did not hear anything, from Insolvency on my bankruptcy status and remaining balance from the housing settlement. I try contacting the lawyer again, but they refused to give me their cooperation. They said they will only liaise with Insolvency. 29 Feb 2016, I then contacted the officer in Insolvency, and update them what has happen. I forwarded them again all the letters & information I knows from my conversation with the lawyer. The officer confirmed has received my email and will update me on any development in my case. On 25 Nov 2016, I wrote an email to the same Officer asking about my case status, when can i have any remaining balance from the profit selling my house and when can my bankruptcy status be revoked. 

After few email following up, as usual no reply and update from Insolvency. On 30 April 2018, I wrote again to the same officer in Insolvency, checking on my bankruptcy status, asking what happen to my excess money from me selling my house, which insolvency should demand it from the buyer lawyer. The buying & selling process of the house completed between end 2014 to Feb 2015, that's mean it has been 3 years but no update no action taken by insolvency during this 3 years period.

I received a reply on the same day from the officer, telling me that The Assets Dept of Insolvency have take over my case and he has forwarded my email to 2 different officer in the Assets Dept. I replied the email and wrote to both Assets Officer on 30/4/2018, but no reply from either one of them. I wrote again to them on 4/5/2018 - still asking about my status & what happen to the money. On 7/5/2018, one of the officer replied, among the content of her email, she mentioned that on 4/5/2018, Insolvency have wrote a letter to the financier & buyer lawyer for confirmation on the status of my condo if the selling transaction successful. 

I replied to the email and questioned Insolvency what have they done for the past 3 years. All information about the buy& sell of my condo completed early 2015. The buyer have taking over the condo since then. All information about the buy & sell have been shared to the 1st officer, and only now Insolvency want to write to the financier and buyer lawyer for confirmation, and it is also after Insolvency received my email on that 4/5/2018. As usual no one reply to my email whenever I questioned them their non-proactive action and their integrity.

On 13/7/2018, another email follow-up from me to the Assets Dept officer. 16/7/2018, I wrote an email to insolvency and now I extend the recipient of the emails to upper lever of officer and Pengarah, from the list of name in Insolvency website. Both email remain in their inbox, none of them care to reply me. I got fed-up with this insolvency. Not pro-active, not professional, absolutely not a trusted organization to manage people bankruptcy cases.

Recently on 5/1/2021, I wrote an email to few officer and bcc the DGI of Insolvency. Email asking about my status. I attached all letters/docs/info related to my case especially the buy & sell of my condo details. Even the highest level of officer does not care to reply me.

Very recent, on 26/10/2021, once again I wrote an email to the highest level officer in KL & Putrajaya including DGI, explaining the history of my case, provide them with documents to support and evidence. I also informed them that my siblings plan to perform an Umrah and they want to sponsor me to go with them. Hence, I'm requesting Insolvency to offer and released me from the bankruptcy charged. On 27/10/2021 the same email content I forwarded to different high ranking officer inKL branch. I forwarded the same email directly to DGI of insolvency on that same day.

On 28/10/2021, I received a called from insolvency, mentioning that she received an instruction from HQ to look through my case requesting to be released from bankruptcy status and she promised that will forward me some forms for me to complete with supporting documents.

1 week after receiving the call (3/11/2021), I follow up again about the forms & paperwork, I emailed to the officer that called me last week and CC few other officer including the DGI. Finally she replied my email and forwarding me few forms and a checklist for me to complete in order to apply to be released.

On 8/11/2021, I returned all paperwork's with supporting documents and they confirmed received my documents on the same day. After a week (16/11/2021), I follow up again on my status. On 17/11/2021, I received an email from different officer acknowledging my email and at the same time, proposed for me to contact another officer who is IN charged on application to go abroad. Accepting the advice and recommendation, I contact the recommended officer and received a her replied mentioning that her team will contact me. 19/11/2021, I wrote back to the officer asking when her team will contact me.

Later I received an email from different officer, confirming that they received all my email dated 16/11. 17/11, 18/11 & 19/11. She also has listed down all documents/forms that I have to fill-in and complete together with supporting documents for the purpose of applying to go abroad. In the same email, she highlighted that I still have an outstanding installment payment amounting to RM81,600 since Nov 2013 till today and she demand that I have to settled the outstanding amount or write a proposing letter on how to settle the dues. 

How do you think I will react after received that email and information that I still have dues since Nov 2013. I wrote a very long email to Insolvency, to the officer who send me that email, all related officer that have liaising with me for the past 1-2 weeks, the 2nd top person in Insolvency HQ and of course the DGI herself.

First thing that i comments in my email, that people in Insolvency are totally not professional, every single of them are in all my email trailed, but they did not communicate to each other. I told them that I have submitted my application to be released from bankruptcy after 8 years with all paperwork's, but they still asking me to forward again the same if I want to apply to travel abroad. To me, all email, all paperwork's, documents that I forwarded should be kept in one file, the dedicated bankruptcy file no provided since beginning, not to be kept by individual officer who received my documents. 

Second thing that I highlighted to them, what is the meaning of when they stated that I have an outstanding dues of RM81,600 since Nov 2013 till todate? I questioned them back, to explain to me the status of the excess money that the buyer lawyer should forwarded to Insolvency in 2015 - 2016? What happen to that? Which officer that is in-charge of this matter? What action that Insolvency have taken since 2014 till today, after all information, evidence, the lawyer name & phone number, that I have shared with regards to the buy & sell of my house. When now Insolvency claimed that I still have dues of RM81,600, it shows that Insolvency did not do their job, they are not fulfilling their responsibilities that have been entrusted with to manage bankruptcy cases with integrity, with just and in professional manner. 

My umrah travel is schedule this mid dec and now I have to change it to Mid January due to I still need to settle this matter to have a letter of consent from Insolvency to renew my international passport.

I'm seeking your advice on my case, what shall i do. I believe that I entitled for a justice in my case. The buyer lawyer froze and kept my remaining balance of profit from selling my house for years and disobeyed instruction from Insolvency. Due to that I suffered for 8 years as a bankrupt. I lost a job couple of times in between 2013 - 2021. Employer unable to hire me after they did background check that I am a bankrupt person. 

Insolvency themselves did not perform their duties as expected. Only upon being pushed and being questioned, only then they start to acknowledge and reply but still never with an answer. All the worked was done halfway, not serious in they worked, no integrity at all and totally not professional.

I really seek for your advice from a legal perspective. What can I do? How do I proceed with claimant for justice? What sort of action can i take to both Insolvency and the lawyer? What is my chances? How do i apply to the Court to revoke my bankruptcy status? I want Insolvency to take responsible for their mistake, not doing their job. Can I claim for damages & compensation for what I have lost?

If no urgency for me to travel and perform my umrah, I maybe dont pushed so much to get a release. 

Please ....please I really hope someone can help me with my case. Do I have a strong case to charge the government?  
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8 Answers

answered on Nov 21, 2021 at 23:14
by  
edited Nov 21, 2021 at 23:47
by   jeff005
Just curious Qs (u need not reply).

1. What was the excess on the sale of the condo?

2. Did you report in to Insolvency immediately in Oct 2013 after being adjudicated as a bankrupt?

3. If have reported in, what amount was the agreed monthly contributions to JIM?

4. Why is that you have not made monthly contributions to JIM since Nov 2013?

5. How did you managed to sell your condo (as a Oct 2013 bankrupt) in June2014?

6. All the above you have only mentioned about the "buyers lawyer", what has happened to Affin bank? My personal opinion is that JIM should be chasing Affin bank and not the "buyer's bank". The proceeds of the sale of the condo should be remitted to Affin bank and Affin bank should remit "any excess" to the bankrupt's estate in JIM. This is stated under bankruptcy laws, how come your case is different?
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answered on Nov 22, 2021 at 13:25
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The answer to the above query lies in 

1.  Laws of Contract

2. Insolvency Act 1967

By scratching the surface of the above incomplete information, how to sue the Government of Malaysia? The bankrupt "may" have broken parts of the 2 above laws.

It is prudent to get explained by qualified Bkcy Lawyers (and be paid) to the find the root of the problem.

It is deemed that the assignor have broken the T&C of a mandated contract by the application of laws.

It is deemed that a buyer did not pay the dues attached to a Contract of Services and yet trying to sue the Service Provider for "Breach of Contract". How to sue?
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answered on Nov 23, 2021 at 23:44
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edited Nov 23, 2021 at 23:48
by   jeff005
Interesting topic for discussion :
 
TBH..  I do not find any evidence of wrongdoings or even lack of discharge of responsibilities with regards to the complaints levied to  JIM  as in the case describe above.
 
The bankrupt, due to lack of further explanations, is solely responsible for the dilemma as described above. The main issues are due to poor understanding of bankruptcy laws.
 
One of the main reason to the whole debacle  is the “non-compliance” to the “Duties of a Bankrupt” upon being bankrupted.
 
One of the foundings of the issue is that a bankrupt feels that if there is a property in hands, one can wait for the property to be sold and the excess (if any) will be used for any discharge of bankruptcy. Bankruptcy discharge does not work in this manner.
 
Read the whole section of the IA1967 and all the T&C of bankruptcy in the Insolvency website to understand how one can be caught in a nasty situation (those with properties in hand).
 
The most important steps upon bankrupted is to :-
1.       Report in - to JIM
2.       File SOA
3.       Attend the 1st Creditors Meeting
4.       Initiate the 3 years case management program.
5.      The case management is executed by the 1st payment of the monthly agreed contributions to repay POD creditors. This is actually a contractual agreement between the bankrupt and JIM.

Failing any of the above steps may be deny from a bankruptcy discharge.
 
Read backwards all the posts and comments about bankruptcy for the past 7 years, in order how to secure a successful discharge from bankruptcy
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answered on Nov 24, 2021 at 12:24
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edited Nov 24, 2021 at 12:28
by   jeff005
For the benefits of this forum readers and bankrupts to be, I shall pen my answers to the above Question on a personal perspective (non-legal).

What sort of action can i take to both Insolvency and the lawyer?
1. To take a legal action against the buyer's lawyer, you have to get the permission of the DGI of JIM. Reason : Non compliance to bankruptcy laws.

2. To take a legal action against AFFIN Bank, you have to get the permission of the DGI of JIM. Reason : Non compliance to bankruptcy laws.

3. To to a legal action against Insolvency, you have to get the permission of the DGI of JIM. 

How do i apply to the Court to revoke my bankruptcy status?
In the situation as above, there is no such revocation of the status.
You may file for discharge of bankruptcy on your own in the High Court. If the DGI of Insolvency does not issue a certificate of discharge, you have been reverted to square one.

What action that Insolvency have taken since 2014 till today
Rather what constructive actions you should have taken.
What appears to have had happened is that all those emails fwding to and fro is to the wrong person in charge. In short, you have been pissing at the roots of the wrong trees all these past 8 years.. (careful.. some tress have poisonous roots).

The Pegawai Insolvensi (in english is Official Assignee-OA).
The bankrupt is the Official Assignor mandated by bkcy laws.
Only the OA keeps a complete file.
Only the appointed OA can act for the bankrupt.
If a bankrupt keeps by passing the OA, no other officers in other depts will read ur emails and complaints.

What is the next solution?
Sit down calmly and face off with the OA  and seek appropriate advise.

My personal views :
1. There could be a breach of non-compliance to bankruptcy laws and policies.

2. The S&P signed and executed is of a suspicious nature.

3. What is the relationship between the buyer and the seller? Between the buyer's lawyer and the seller, so much as that fees can be charged. This type of bankrupt's property, a bankrupt is deemed to be penniless and as such, all fees have to be settled by the buyer. It is a common legal practice.

4. Why is AFFIN bank silent on this sale, all docs should be provided by the bank.

In the even of perceived fraudulence sale and transfer, the DGI of Insolvency, is empowered, to nullify the S&P, leaving everybody (incl JIM) in a state of "stateless limbo".

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answered on Nov 25, 2021 at 18:15
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Thank you so much for everyone advise/views. Firstly, let me just clarify few things about my case, so that everyone is clear. Sorry for the incomplete info earlier.
 
a) Affin Bank is the creditors who charged me as a Bankrupt for my housing loan with them – a house in Puncak Alam
 
b) The S&P transaction that I mentioned earlier is for my condo in Ampang. This condo is still under mortgage terms with AIA Berhad. As at 31/12/2013, AIA issued a SOA of my remaining balance mortgage loan is RM154,400.00
 
To answer some of the questions above
 
·    I managed to close the deal with the buyer and sell my condo at a price of RM310k. The excess from the sale of my condo is roughly between RM95-110k
 
·    I did report myself to JIM in Oct 2013 and submit all documents related and my 6th months of income statement vs expenses.
 
·    My monthly repayment amount was RM960
 
·    Why I did not make my monthly payment to JIM since Nov 2013, was due to that I know for sure, I will gain some excess money from selling off my condo. Whatever the amount is, I will never see it cause for sure JIM will took every single cent of it.
 
·    How did you managed to sell your condo (as a Oct 2013 bankrupt) in June2014? This is due to the condo is still under mortgage loan, hence any transaction of selling & buying is still under discretion of the bank (AIA Berhad). JIM have no authority on the selling & buying transaction.
 
Upon being adjudicated as a bankrupt, the officer who handle & took my case is En. Fahrin. He is the 1st person I met and discuss about my case, to him I submitted all my documents, my 6 months income vs expenses statements and everything else. To him as well I email all information related to selling off my condo. I forwarded to him the buyer lawyer name, his hp no, which lawyer firm he represents from, all letters, messages & my communication with the buyer lawyer, everything I shared with him. To me he is the OA that I know, since he never mentioned any other officer name or forward me to someone else, not until 4/5/2018, where he replied to my email sharing with me 2 officer name & contact details from the Asset Dept, who is now taking over my case.
 
From the letter issued by JIM (23/6/2014) {Letter 2} to the buyer lawyer, showed that the buyer lawyer has been communicate with JIM on the condo S&P transaction. In the same letter, JIM mentioned/reminded to handover the excess money from the S&P transaction to JIM for the benefits of creditors (Affin Bank, who charged me as bankrupt). Whatever excess money that I will get from selling off my condo, JIM will use it to settle my dues with Affin Bank.
All the S&P transaction completed somewhere in Dec 2014.
 
Letter 1 was issued to me by the buyer lawyer on 5/2/2015. Upon receiving this letter, I forward it to En Fahrin JIM Officer. He asked me to inform the lawyer to communicate with JIM directly on this. As per what I know and remember, any monetary transaction (either incoming or outgoing) related to the bankrupt account, must have consent from JIM, since JIM is now the one who administer & manage the bankrupt financial matters. And I did contact the buyer lawyer and remind them to handover the cheque to JIM.
 
On Nov 2015, due to economic crisis, I was retrenched/MSS from one of the O&G company. I did notify and shared my retrenchment/ MSS to Insolvency, so that they know that I am out of job now. No income to support myself, my family and to pay my monthly commitment.
 
After couple of months out of job, in Feb 2016, I was hoping that all the transaction with JIM have completed, the buyer lawyer has forwarded the cheque, and hoping that I could get some extra cash after deducting my dues from Affin Bank. So, I wrote to JIM (En Fahrin) asking the status of my case & and email to the buyer lawyer, status of my excess money, I’m quite shock nothing was done since Feb 2015. The lawyer kept my cheque since 2015 and not updating JIM about it. JIM just keep silence not doing anything, no follow up with the lawyer about the excess money. To me, I believed JIM have the authority to instruct the buyer lawyer or questioned the lawyer about the excess money. But JIM as the organization who been trusted and responsible to administers bankruptcy cases and affairs, if they did not perform and act to the situation, who else can do it. The lawyer does not care to answer my call & email.
 
And the situation of my case remains uncertain. JIM giving a silence treatment. Whenever I email inquire the answer will be, if there is any update, we will contact you. Until May 2018, I wrote an email to JIM Asset Dept, and on that same day JIM received my email, they issued a letter to AIA Berhad & buyer lawyer to ask for confirmation on the status of the condo. From here, it shows JIM not doing anything. If truly JIM issued a letter to AIA Berhad and buyer lawyer on that 4/5/2018, what was the outcome? I’m certain AIA will revert that the transaction of the mortgage was completed in 2014. Not sure what the buyer lawyer will reply, cause JIM never update me with any info and no reply at all to my next email dated 13/7/2018 & 16/7/2018.
 
Until today, no one in JIM replying to my latest long email (20/11/2021) complaining about the issue and asking for an answer to my 8 years bankrupt status, the excess money and justice to it. Not even the DGI of Insolvency, even though I did email to her personally forwarding all my communications, the supporting letters. So, what I shall I do now? None want to take the responsibilities.          
 
Malaysia Department of Insolvency (MdI) is the government agency that administers bankruptcy cases and bankrupts’ affairs. Our core activities are discovery of asset, realization of asset, ascertainment of debt, and distribution of payment to the creditor.
 
 Please advise, If I were to engage a lawyer to dig and find out the root cause of this matters, worth it or not? How much the cost of the lawyer? Is there any lawyer services for those who is can’t afford to pay.
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answered on Nov 25, 2021 at 21:17
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edited Nov 25, 2021 at 21:28
by   jeff005
@ MyFair1770

This is strictly my personal perspective.
(This is a good thread for discussion)

Sorry for the injustice bestowed upon you. There can be still "some" justice to get but from both AIA and the buyer's lawyer. How much and level of justice is highly subjective and speculative.

There can be no winnings against JIM, I can figure out what JIM will have their say in court. Non-compliance to the "Duties of a Bankrupt" is the easiest killing point. The absence of any payment is good enuf not to allow a bankruptcy discharge application. 

First all, I would highlight some erroneous technical aspect tendered above (in my personal interpretation).

------------------------------
Part 1

 Quote : JIM have no authority on the selling & buying transaction.
 
mortgage loan = financial loan right?
Landed property = asset right?

Adjudicated as a bankrupt in Oct 2013, the assets and financial matters is already under the purview and management of JIM.

The exception at that point of time, the lender of the loan can liquidate a collateral within 6 months on date of bankruptcy.

The S&P was executed more than 6 months later. Actually all parties have knowledge of the bankruptcy status. Normally JIM will close one eye on this infringement (I have written an article on this matter before).
 
In 2017, the period have been extend to 1 year (IA-1967 also known as IA-2017).
 
YES.. JIM does have authority on the transparency of the S&P.

(although the loan lender have the first lien on this collateral for 6 months only under bankruptcy laws).

(Part 2 to be continued)
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answered on Dec 11, 2021 at 23:56
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edited Dec 12, 2021 at 00:04
by   jeff005
With regards to the above :

To sue or not to sue, and who to sue?

The Fundamentals of  Contract of Services.
Any contract signed is binding on both parties or multiple parties and is subject to the T&C laid down within the scope of the contract.

An individual, once bankrupted, the estate of a bankrupt is managed by JIM by the application of bkcy laws. Once the bankrupt has reported in to JIM, a SOA is declared and validated by a Commissioner of Oaths. Based on the disposable income of the bankrupt, a monthly payment is derived and forms the basis of a monthly contribution to be paid by the bankrupt for the purpose of repaying to the creditor and other POD creditors. Any assets will be disposed off, to repay ALL creditors.

A contract of service will be signed by JIM, bankrupt, bankrupting creditor and other POD creditors. The first payment to JIM thus executes the contract. Normally it take at least 3 months before any finalization of this Service Contract.

With regard to the above topic contents, JIM requirement of RM81,000 outstanding since month of being bankrupted (Nov 2013) signifies that there no payment from the bankrupt at all.

Personal Interpretation
Any monthly contribution paid by the bankrupt, a percentage of around 12-13% will be charged to the creditor/s by JIM. There is no charges to the bankrupt. When a bankrupt did not make any payment, there is no existence of any service contract. Nothing is free. To start a lawsuit on JIM for any wrongdoings is fruitless, even then, JIM would not give permission to launch such a lawsuit.

The parties to be sued with be
1.  Bank that bought the property
2.  Bank that had received the proceeds from the disposal of the assets.

Possible reasons : Non compliance to Bkcy Act.

(Must also take into account, the lawyer that was "holding back" /retaining the moneys, could have gone bankrupted during this economic recession).

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answered on Jan 12, 2022 at 12:17
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There is a new article regarding Discharge of Bankruptcy in this thread:

https://www.lawyerment.com/answers/questions/14123/bankruptcy-discharge-s-33-ia-1967-and-annulment-of-bankruptcy-s-105-ia-1967
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