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Application to Strike Out the Creditor's Petition

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asked on Apr 19, 2012 at 00:19
by   hopeful
Dear notalawyer,

Thanks for your reply.

Please allow me to ask a few questions:

1. When you say "If you lose, ask for a short break and then quickly file the Notice of Appeal to Judge in Chambers."
--> when we ask for a short break, i assume, it is 20-30 mins break, right? filing a document takes minimum 2 hours, therefore, it is impossible for us to go file the document and return to the hearing within the short break, so how??
--> can we send someone else to file it? as in waiting downstairs with a queue number since 8am? (before the hearing even start?)
--> and judging from your next statement, you mean we should file these 2 documents, 1. appeal to judge & 2. summon in chambers to stay application, together, (if possible) during the break?
--> what if they do not allow a break? what do we do then? can we tell them honestly that we want the break because we want to go file these 2 documents?

2.When you say
"After the break, inform the SAR that you have filed another Summons in Chambers to Stay Bankruptcy Proceedings and ask for a new date so that the Judgment Creditor ( JC = bank ) will have time to reply to your stay application's affidavit."
--> is this summons in chambers to stay bankruptcy proceedings the same one i filed yesterday? the same document can be used?
--> and if i send this sealed copy to the lawyer tomorrow, and the date has been set 4th of May, doesnt the JC already has enough time to reply to the affidavit?
--> or do you mean to say we do not need to post it to the lawyer this letter?

3. "Does your mum know what to say for the Application to Strike Out the Creditor's Petition?"
-->your previous advice was "Give reason and argue why the Petition should be killed."
--> all the reasons has already been mentioned in our afidavit, i do not know what else to add. we do not seem to have any valid legal grounds, do we?
--> i translated it into english, because my mom is more comfortable to speak in English, and as i previously mention, the lawyer and the SAR also talk in English
--> please please advise if anything else we can say?? I will ask my mom to start memorising these
1. I am xx years old, retired since year xxxx, divorced and i alone am responsible to raise and provide for my 4 children, aged xx-xx. They are all currently still studying, only my eldest daughter will be graduating this year.
2. I do not have any valuable assets, property or shares that could be sell off. I only own a 24 year old car. My total asset is less than RM 5000.
3. My sole source of income is my pension, which is just enough for me to pay the house rental and to maintain a daily living and to provide for my children.
4. My health condition does not permit me to hold a full time job, I had heart operation done in year xxxx, I have high blood pressure, high cholesterol and heart disease, and need to take multiple medications daily and go for frequent regular follow up and blood tests in the hospital, moreover, with my age, it is impossible to get any employment anyway.
5. If I am declared a bankrupt, my pension will be ceased and the livelihood of me and my family will be jeopardized. I also believe that no party will benefit by declaring me a bankrupt.
6. I was the guarantor for a loan taken by my ex-husband in year 1996. I was never involved in any of his business.

Thanks and regards.
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answered on Apr 19, 2012 at 01:39
by   notalawyer
when we ask for a short break, i assume, it is 20-30 mins break, right?
If it is near lunch, ask to continue after lunch.
If it is not near lunch, say need to go toilet or break down and ask for 2 hour break.
If the SAR says give you 30 mins break, insist on 1 hour to "prepare for next hearing".

filing a document takes minimum 2 hours, therefore, it is impossible for us to go file the document and return to the hearing within the short break, so how??
--> can we send someone else to file it? as in waiting downstairs with a queue number since 8am? (before the hearing even start?)

Normally I file documents within 15 minutes, maybe you need to fine tune your filing procedure.
Getting somebody to get queue numbers should help.

--> and judging from your next statement, you mean we should file these 2 documents, 1. appeal to judge & 2. summon in chambers to stay application, together, (if possible) during the break?
What are you talking about?
You said you already filed the stay application yesterday, how can you file it twice?
Don't make stupid mistakes like this.  Your battle here is at a critical stage.
Only file the Appeal to Judge in Chambers during the break.  Then give the bank lawyer his copy of the Appeal to Judge in Chambers when you meet after the break.
Please send the Stay Summons in Chambers and Affidavit to bank lawyer asap, latest tomorrow.

--> what if they do not allow a break? what do we do then? can we tell them honestly that we want the break because we want to go file the appeal document?
No. If the SAR does not allow a break, inform him that you have filed a Summons in Chambers to stay the bankruptcy proceedings and ask that the stay application be heard first before the Creditors Petition  hearing. In this scenario, file the appeal to judge in chambers when you are about to go home.

2.When you say
"After the break, inform the SAR that you have filed another Summons in Chambers to Stay Bankruptcy Proceedings and ask for a new date so that the Judgment Creditor ( JC = bank ) will have time to reply to your stay application's affidavit."
--> is this summons in chambers to stay bankruptcy proceedings the same one i filed yesterday? the same document can be used?

What do you mean by "can be used", I don't understand.

--> and if i send this sealed copy to the lawyer tomorrow, and the date has been set 4th of May, doesnt the JC already has enough time to reply to the affidavit?
--> or do you mean to say we do not need to post it to the lawyer this letter?

I had already given my advice in previous posts that the later you file the stay application, the higher the chances your mum will become a bankrupt on the next hearing, you chose to ignore my advice.
Don't blame me if it happens.
Please send the sealed copies ( summons in chambers and affidavit ) asap ie. tomorrow to the bank lawyer.
Don't worry if they have enough time to reply your affidavit. If and when they reply, we prepare for it.
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answered on Apr 19, 2012 at 03:23
by   hopeful
Dear notalawyer,

Thanks for your reply.
Okay I understand the situation better now. I misunderstood earlier I thought you meant to file another stay application.
When you say "If the SAR does not allow a break, inform him that you have filed a Summons in Chambers to stay the bankruptcy proceedings and ask that the stay application be heard first before the Creditors Petition hearing."
--> I believe the SAR already knows that we have filed the stay application, because everything is clearly listed in his computer, and they have purposely set the date on that day, the same SAR is in charge of the stay application hearing as well.

Ok, we will post the letter to the lawyer tomorrow.
Ya we had intended to file it earlier but a lot happened in the last few weeks and we couldn't find the time.
No worries, we only have gratitude for all you have done. We will not blame you for anything. Whatever happens, you already told us our chance is 10%. We just want to delay if possible.

Thanks again.
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answered on Apr 19, 2012 at 13:30
by   notalawyer
--> I believe the SAR already knows that we have filed the stay application, because everything is clearly listed in his computer, and they have purposely set the date on that day, the same SAR is in charge of the stay application hearing as well.

Still you must inform him because he has too many cases on his plate and he may not see the computer or the computer may not be updated.
If you do not inform him, the CP hearing may start and your mum will become a bankrupt.
Take this seriously.
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answered on Apr 19, 2012 at 18:42
by   notalawyer
1. I am xx years old, retired since year xxxx, divorced and i alone am responsible to raise and provide for my 4 children, aged xx-xx. They are all currently still studying, only my eldest daughter will be graduating this year.
2. I do not have any valuable assets, property or shares that could be sell off. I only own a 24 year old car. My total asset is less than RM 5000.
3. My sole source of income is my pension, which is just enough for me to pay the house rental and to maintain a daily living and to provide for my children.
4. My health condition does not permit me to hold a full time job, I had heart operation done in year xxxx, I have high blood pressure, high cholesterol and heart disease, and need to take multiple medications daily and go for frequent regular follow up and blood tests in the hospital, moreover, with my age, it is impossible to get any employment anyway.
5. If I am declared a bankrupt, my pension will be ceased and the livelihood of me and my family will be jeopardized. I also believe that no party will benefit by declaring me a bankrupt.
6. I was the guarantor for a loan taken by my ex-husband in year 1996. I was never involved in any of his business.

Reading a translation from the affidavit is not a good way to argue your case.
Let's see what your mum says if the bank lawyer talks like this on the 1st Summons in Chambers hearing.

Bank Lawyer: Tuan, JD only says that she has no income and no assets. Where is the proof that she has no income or assets?  JD has failed to prove this.

Your turn.
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answered on Apr 20, 2012 at 15:42
by   hopeful
I have 4 children, aged from xx-xx, I am already divorced, I am xx years old, been retired for many years, and no longer working. I only have my pension monthly which is just enough to pay for my rental and provide for my children. I do not have any other assets, property or shares. What other proof do you need?
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answered on Apr 20, 2012 at 18:42
by   notalawyer
YOUR MUM : Tuan, it would be extremely burdensome to prove that I have no assets or income.
For example, I will have to get letters from all banks in Malaysia to certify I have no significant savings with them.
Then I have to get letters from all companies in Malaysia to certify that I have no shares in income from them.
Then some more have to get letters from Pejabat Tanah and JPJ from all states in Malaysia.
It is an impossible task.
So you see, it would be far more easier for JC to hire a Private Investigator to check whether I have any assets or income. This the JC did not do. So JC and the court have to accept my sworn affidavit that I have no assets and income.
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answered on Apr 20, 2012 at 18:46
by   notalawyer
Bank Lawyer: Tuan, Not having any assets or income is not a reason enough to avoid bankruptcy.

Your mum's turn.
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answered on Apr 20, 2012 at 20:14
by   hopeful
Tuan,

I believe bankruptcy is a mean for JC to recover money from the debtor, isnt it right?

In my case, I was only the guarantor of the loan. And I was not involve in any of my ex-husband's business. I had to sign as guarantor because no one else would, and it is my marital responsibility to sign, even at that time my income bracket does not even make me qualify to be a guarantor of a loan of that amount.

To make someone a bankrupt, the main aim is to fairly distribute the debtor's asset in order for the JC to recover money.I have no valuable assets and hence by making me a bankrupt, no party will benefit from it. Moreover, it will jeopardize the livelyhood of my family because my pension would be withdrawn.

I have also tried many many times to negotiate and appeal to the JC, however they did not accept my appeal. I have also followed your advise (SAR) to re-appeal to the bank again after our previous hearing in March. Even though the amount I could offer them is a small amount compared to the outstanding amount, i believe it is still much better than them wasting their resources and going to court. And in the end, even if I am declared a bankrupt, they will not gain anything from it.
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answered on Apr 20, 2012 at 22:23
by   notalawyer
Is this argument written by you or your mum?
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answered on Apr 21, 2012 at 00:09
by   hopeful
by me, but i will ask my mom to memorise it if it is usable.

so it is usable?

I also found a quote online, perhaps it is relevant?

It is appropriate to quote His Lordship Dr Haji Hamid Sultan bin Abu Backer JC in his decision of  Re Siow Ah Moi; ex p United Orient Leasing Company Bhd [2007] 3 MLJ 713, where he said:

“ I think that is not the purpose of the Bankruptcy Act 1967. The object of the Act which I think is a social legislation to protect the bankrupt can be summarized as follows:

(a) to secure fair and equal distribution of available property among the creditors;
(b) to free the debtor from his debts so that he can make a fresh start as soon as he is discharged by the court;
(c) to deter people from rashly incurring debts they cannot pay;
(d) to vest the debtor’s assets in the Director General of Insolvency for equal distribution to creditors;and
(e) finally to discharge the debtor from bankruptcy and restore his civil status.
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