Bankruptcy Restrictions Undertaking (or Order)

NotEvanAPot

Hope you're sitting comfortably, I'll give London1973 a run for his money here!

Yesterday marked 11 weeks until my discharge. 11 weeks until the monkey would be shed from my back and I could start again properly. Or so I thought...

At 09:30 yesterday morning I was contacted to request my attendance later that same day at the Insolvency Office a few miles from my home. Upon asking why, it was stated that a creditor had queried my account of a situation leading up to my bankruptcy application (not going in to details here as I prefer to keep things both clean and professional and would be liable to use sailors language to describe this particular carbuncle of the Earth). The examiner contacting me also admitted that this had been allowed to sit since the 5th October in someone's inbox who happened to be on long term sickness absence.

I could have played the game and said I require proper notice, I could have requested that they write to me formally inviting me in, I could have asked for an outline of what was being brought in to question. I did not. I agreed to attend and give a statement several hours later.

Statement provided, the examiner freely admitted that she came in to the interview ready to advise that they would be submitting a report to the Secretary of State to issue a BRU/O, to apply to the local court for suspension of automatic discharge and an interim BRO, but that based upon such an open and frank statement being provided, would be leaving the decision up to the OR himself to decide upon, as both sides now provided equally weighted stories and documents. I think my informing her that I would not just roll over and accept an undertaking whilst staring across the table made her realise that thanks to their level of attentiveness it meant that they were now walking an ever decreasing path that they are used to having total control over.

This post is for several reasons, some personal as a bit of a release and others hopefully of equal parts advice, wake up and insight to others:

1. Never assume all is good (or equally that all is bad), but never chase. I was aware that a creditor was potentially going to cause a nuisance, but I did not keep contacting the OR to ensure everything was OK. Had I done so, I may have woken them up and they would have had a lot more time to dig far deeper in to the matter (which, I will admit, is a legal grey area in terms of asset disposal).

2. Be honest, cooperative but also fearless to challenge. You cannot be locked up by the Insolvency Service, so if you do not agree with something they say, do not be afraid to tell them. This particular examiner overreached by telling me that if I did not tell National Debtline to release transcripts of conversations, they would simply apply to the court to receive them anyway. Once I had highlighted that I deliberately spoke with a solicitor and not an advisor at the service, she quickly backed down. A letter was provided to confirm a conversation had taken place, but that as it was privileged they could not have access to a transcript or copy without consent. Usually the Insolvency Service will keep to within the boundaries, but they are occasionally looking to trip you up, even when they sound understanding, polite and sympathetic. Keep your guard up and do not elaborate unless asked.

3. MSE is a great place just to let off steam. I won't know whether this is proceeding further until at least Friday, and do not want to worry my partner so have kept quiet. Bankruptcy is a legal protection, but a BRU/O is a punishment, and I feel that I neither deserve or will receive one based on balance of probabilities used to decide whether to proceed and, if it did, whether a court could separate emotions from finances and look at physical evidence only with malice removed.

4. Things take time. Don't be worrying or losing sleep when it is only a few weeks following BR order date and the OR hasn't spelt out everything that will be happening. Post here for some moral support, but DON'T POKE THE BEAR!!

Finally, for those that have gotten this far, can I please have some praise that, after being a smoker since school age, yesterday was also my quit date and that, even through this unneeded stress, I still haven't lit up again. 2 days smoke free feels a lot longer since the last joyous yet disgusting cigarette (Champix works), but the big stress challenge has been passed thus far!

alltaken

Well done indeed, quitting can be tough - smoke free since 2009 and even now, stressed times can trigger the urge.

You strike me as a man of principle, somebody who is unable to go back to his previous vocation and I can only imagine that is of great pain, I imagine you're feeling like luck is a factor.

Of course the IS might overstep bounds from time to time, much like any large entity, government or otherwise. You have recourse; they have to go to court to gain a bankruptcy restriction after all.

On balance, if everything is above board then nothing is to be feared from contact, the technical manual is pretty large, discretion is smaller, and it's all financial and legal. Poking the bear, is not really the case; if everything were investigated and some things discovered as warranting further insight, my belief is that they should and would have come to light at some point anyway, it's part of the process surely. If the OR had to be stirred into serving the public interest through a BRO via the bankrupt them self asking a question that fine an action... then surely the grounds for a BRO are already pretty concrete.

Are you worried that the creditor might gain a moral victory, emotional victory? Is it fueling your anger?, the court will decide the BRO if it gets that far right? It's all precedent and public interest as far as I can see, should you be served a BRO? If it were at times a simple case of not alerting the OR through unrelated questions asked by a bankrupt, we would see more people with regrets.

When searching posts on this board for every bankrupt posting about contacting the OR's office, I have not seen any comments that indicated in those threads or otherwise to say that a BRU was likely triggered because of further contact to the IS. Indeed those same posters have often posted discharge threads of their own without mention of restrictions.

I really do understand how unfair you must feel things have been and perhaps want to believe that the IS operate on gambles and luck in some areas, in my eyes they operate on what has happened, you can't change what has happened and should take anything served not with anger, but dignity, it happened, it was rectified for the public interest and you moved on.

Did you expect a BRO? and would you have declared bankruptcy if you knew a BRO was likely?

A4445

I know you don't want to have a BRU/O but if you do get one it's really no big deal. I had one for 3.5 years didn't really make much difference. I wouldn't worry at all about it.

london1973

yes well done with the fags, although brace yourself for the hard bit, when the euphoria of quitting subsides and you are just plain desperate!- I quit about 6 months ago cold turkey; my advice? go to bed early, with a drink if you like, I would always crack after my usual two or three glasses of wine in the evening, and make the walk of shame up to the local store, harder if you are in your pyjamas!!

I digress, bad luck with the OR, I am intrigued by your story, I posted a while back my concerns that one or two creditors of mine might be minded to be bitter, there would be no gain to them or the OR for that matter, i.e the debts are crystallised, and there is nothing out there that other government bodies don't already know, so it would be entirely vindictive. By all means tell me to sod off but I would gladly receive a PM VAGUELY outlining your situation to see if there any comparisons

The great 'don't poke the bear' debate rumbles on I see, I am inclined to go with you but see where Alltaken is coming from and, clearly, more often than not its not going to make a difference, however it only takes one jobsworth and a rather grey and murky case to potentially cause trouble-i'm 'fingers crossed' they aren't delving too deep into my story, so agree best cause of action is to keep quiet

i'm with you on point 3, this is a great place to let off steam, and give oneself some narrative, hence my rather verbose posts, as I've said before I find it quite therapeutic, and the last thing I want to be doing is boring my nearest and dearest senseless with my ongoing sagas, I'll bore you lot instead!

LoveLifeAgain

Well done on becoming a non-smoker, I hope that continues well and you have a favourable outcome with the IS.

NotEvanAPot

alltaken, thank you for your response. I do find we have a good ability to converse whilst at odds established.

My being barred from practising due to my financial position was of personal anguish, but as Tuesday marks 1 year since departing, it is something that I have mostly put to bed now. I certainly am a calmer, more secure and peaceful individual today when compared with the forthright, egotistical and ruthless person I had been for 10+ years professionally.

I am genuinely of the belief that, if you are honest and answer every question posed, the lack of resource can mean that not contacting the Insolvency Service during undischarged period will mean that a questionable (not by me, but from an oversight position) number of BR slip through the net. We see it here regularly, contrite gamblers with no penalty versus gamblers not so remorseful hit with an undertaking. That is discretion at play mixed with a lack of time and effort.

Having been paid to argue a point for the benefit of a paymaster for many years, I would say that any and every members story could be reviewed and a reason to hand down a restriction in the public interest could be formed. In exactly the same way it could be possible to scrutinise circumstances to increase the low (circa 15%) of IPA/O that are put in place.

Any potential feeling of loss, anger or a need to bare my teeth towards the particular creditor is deep seated in how the professional relationship deteriorated. My victory is long gone, having been scored in April 2015 by departing with clients securely attached to the coat tails and having been handsomely rewarded for it.

From a public interest perspective, the application to proceed is weighted towards allowing it to happen against me. This is purely because a creditor(s) exist(s), a circumstance occurred, omission of a fact was questioned and admitted. The only tipping point in my favour on this first decision is the standing of the creditor to call areas of investigation in to question - private high ranked firm, rejected application to form creditors committee, seeks embarrassment of individual and public body following underhanded investigation. Would it be in the public interest to have the Insolvency Service's failings put under scrutiny because of a vendetta of a creditor to highlight lapses, and would such a service seek said attention?

I have not calculated the exact percentage of BR with BRU/O (somewhere far under 2%, but the IS really needs to let the ONS do their tables) nor compared to MSE member's postings. I can give some statistical facts however, in that men are 1.7 times more likely than women to declare or be declared bankrupt (IS stats). Men are twice as likely to use credit to fund credit or receive credit by falsifying details at application (BBA stats). Men are 6 times more likely to deceive, omit details or lie when asked a direct question by someone in an investigative capacity (combined ACPO & HMCTS stats). In contrast, women (18-65 combined) are 3 times more likely than men to use online platforms to seek advice, diarise life events and actively take part in discussions (Business Insider, combined averages). In short, the numbers would suggest that more men go BR, would receice BRU/O and never tell their tale here.

I am very familiar with how the Insolvency Service works, as with many other public bodies operated according to legislation, it came with the territory. I certainly will not simply believe that the circumstances are such that dignity will prevail just yet.

Absolutely I would have declared bankruptcy on the sum of evidence I held in my hands on the morning of 3rd February 2016. Yes, I was aware a BRU/O was a possibility, in conjunction with the fact that the only circumstance that could lead to one had a loophole big enough to charge a well oiled legal army through left dangling for mitigation and primed for a challenge. I simply made the mistake of thinking that as it was not discovered by the IS, that I could sleep soundly for the last few months and the next 11 weeks. Not the case at the moment, but I shall wait until Friday.

NotEvanAPot

A4445 and LoveLifeAgain, thank you for kind words.

London1973, you have a PM!

[Deleted User]

I agree with much of what you have said.

Particularly 'not poking the bear' - I was told (by the OR) it was "very likely" I'd get a BRO/BRU. I also have one creditor that were owed approx 50% of the total BR value (which was over 50k), so I wouldn't be at all surprised if they wanted to try and get the OR to push for a BRO/U. I also know that in a vast number of cases involving sums less than mine but similar circumstances, BROs are given if BRUs are not accepted.

Whatever happened, somehow I didn't get one. I'd say that the whole bankruptcy 'situation' and trashing of credit file, potential jobs (in the finance sector) etc is distressing and punishment - though I can totally understand why a BRO would be sought to further punish me.

Like, I suspect, many people - I feel I don't 'deserve' a BRO, but wouldn't have had much cause for complaint (other than the inevitable anger) if I was given one (or asked to agree to a BRU).

If you are hit with one, you may be lucky and it may not appear on all registers - sometimes it doesn't appear on all 3 CRAs for example - meaning it's possible to get credit as 'normal' (rebuilding etc at first) in the years following discharge - rather than it necessarily being an automatic bar until it expires

Although I can completely see the moral side of co-operating, and why you would want to do so, doing everything (within the law) to delay - by asking for notice as you are busy, requesting an outline of what will be discussed etc - would personally have been my approach.

That said, it will always be debatable whether that affected the outcome or not. Maybe it will work in your favour and you won't get one. Maybe it will work against you in that they have obtained your statement easier than it otherwise would have been..... maybe playing 'the game' would have caused them to go for suspension of discharge anyway (and so hindered your care), or maybe delaying would've caused them to overlook you and run out of time. Nobody will ever really know.

All I can say is best of luck whatever happens!