Bankruptcy COMI and Other Questions

[Bobby1983]

Dear All

I will be applying for bankruptcy in March 2nd 2015 and have a few questions that I need to clarify -

How long must one live in the UK before applying for bankruptcy. I have been in Europe - France and returned in November 11th 2014.
What is the best method for establishing COMI.
If my wife stays in France, can this be used against me in that issue.
How long after bankruptcy can I return to France. Will there be anything in my bankruptcy restrictions.

I have debts of 50k, of which 15k is in France. I have a failed IVA in 2009 due to taking poor advice.
Debts in France were accrued due to unemployment and short term employment contracts etc. Debt was used to survive. BIG MISTAKE!!

This is a lot of questions and something I would pay for if I could afford it, but if I can donate to the page please send me a link. I thank you in advance for your help.

Thanks

Booby

[DebtSanity]

Re: Bankruptcy COMI and Other Questions

Hi Bobby- let me see if I can offer some help...

The law says you must have been within whatever bankruptcy jurisdiction you wish to file in, for "the greater part of 6 months" immediately preceeding the petition- so that means in plain English 3 months and 1 day. I help a lot of Irish and German clients file here in England and Wales and whilst 3 months and 1 day is fine strictly speaking, we normally work towards a 6 month period.

Are you British? It's not a salient factor generally but the threshold of proof of you being here is lower than if you are not. Similarly, because you have UK debts the burden of proving your COMI in real practical terms is lower.

As for your wife remaining in France, I've had cases where the non-bankrupt spouse has remained abroad and none have encountered issues. I've had one literally weeks ago in Peterborough with no problems at all.

Regarding when you may return to France- my advice is to wait at least until the OR is satisfied that everything is in order. It isn't necessary to wait until your 12 months of bankruptcy are up.

Whilst I have answered the questions you have asked directly I would wish to make the following comments too which are very important.

It is not just important to be living here for COMI purposes but to be seen to be living here. By which I mean make sure you are gathering COMI evidence which normally includes as standard an NI Number, a tenancy agreement (if you're renting) a bank account, a phone contact, utility bills, registration with a Doctor even. That's all good COMI evidence.

It is how the picture looks in the round that's important and everything must stand up to scrutiny. Evidence does that for you.

One more thing; are you "gainfully employed" here? It's not a deal breaker if you're not but expect to be asked about that.

Okay, just one final thing, have you informed your creditors of your new address in the UK? Where cases DO fall under scrutiny that can be something a Court will insist on (never been a problem for me). An important COMI case before the Courts dealt with this matter and the Judge said that creditors should be readily able to ascertain where your "habitual place of residence is".

Hope this helps but it is not designed to be a full and complete appraisal of your individual circumstances. Please fire away with questions.

[Bobby1983]

Re: Bankruptcy COMI and Other Questions

Hi and thank you for the response.

I am british and returned back on 11th November 2014. I have been employed for 3 weeks when I arrived, but now I am claiming JSA Benefit. I have -

Living with Parents and paying rent
Driving license
Registered to vote
Registered with a Doctor
Bank account
Grocery and travel receipts
Receipt of when I returned
JSA benefit proof.

I have been told by stepchange and I have an email from the court, that to petition I must be 3 months and 1 day in there area ir the greater part of six months. What can they do at the court to preventme from gojng bankrupt.

[Bobby1983]

Re: Bankruptcy COMI and Other Questions

Hi and thank you for the response.

I am british and returned back on 11th November 2014. I have been employed for 3 weeks when I arrived, but now I am claiming JSA Benefit. I have -

Living with Parents and paying rent
Driving license
Registered to vote
Registered with a Doctor
Bank account
Grocery and travel receipts
Receipt of when I returned
JSA benefit proof.

I have been told by stepchange and I have an email from the court, that to petition I must be 3 months and 1 day in there area ir the greater part of six months. What can they do at the court to preventme from gojng bankrupt.

And sorry all foriegn creditors have been advised and they are sending statemenfs to me here.

Thanks once again

[DebtSanity]

Re: Bankruptcy COMI and Other Questions

It sounds like you are ticking all the boxes- not that it's a box ticking exercise it isn't but as long as you are really living here legitimately then with all your COMI evidence you are good to go.

As for what can the Court do to prevent you going bankrupt, let me say this...

The Court is tasked with being sure about 2 issues only:

1. That you are insolvent. Your Statement of Affairs will evidence that.

2. That you are entitled to petition in that Court. Your COMI evidence confirms that- it's the "greater part of 6 months" rule again.

The Court doesn't do anything beyond satisfying itself of those 2 criteria. It doesn't even ask you to prove who you are but that's another forum discussion altogether!!

[Bobby1983]

Re: Bankruptcy COMI and Other Questions

It sounds like you are ticking all the boxes- not that it's a box ticking exercise it isn't but as long as you are really living here legitimately then with all your COMI evidence you are good to go.

As for what can the Court do to prevent you going bankrupt, let me say this...

The Court is tasked with being sure about 2 issues only:

1. That you are insolvent. Your Statement of Affairs will evidence that.

2. That you are entitled to petition in that Court. Your COMI evidence confirms that- it's the "greater part of 6 months" rule again.

The Court doesn't do anything beyond satisfying itself of those 2 criteria. It doesn't even ask you to prove who you are but that's another forum discussion altogether!!

Dear Debtsanity

I am insolvent and have no assets and it looks as if the COMI is ok. Any other tips or suggestions would be gratefully received.

Thank you for your advice. Hopefully all will be okay.

Kind Regards

Bobby

[DebtSanity]

Re: Bankruptcy COMI and Other Questions

Good luck Bobby. Don't hesitate to ask any other questions. Put together a file with all your COMI evidence and bring it to Court. Some Courts have been known to adjourn the hearing and ask debtors to come back with all their evidence. It's becoming less common again recently but as the Boy Scouts say "Be prepared"!

[Bobby1983]

Re: Bankruptcy COMI and Other Questions

Good luck Bobby. Don't hesitate to ask any other questions. Put together a file with all your COMI evidence and bring it to Court. Some Courts have been known to adjourn the hearing and ask debtors to come back with all their evidence. It's becoming less common again recently but as the Boy Scouts say "Be prepared"!

Cool. I will do this. Thanks once again.

Bobby

[Bobby1983]

Re: Bankruptcy COMI and Other Questions

Just to clarify Debtsanity,

If i were to turn up at the court and my Comi and forms were in order and that I have lived here now for under 4 months. Can they send me away. I meet all other criteria of insolvent etc. I just dont want to set myself up to fail.

Thanks in advance.

Bobby

[DebtSanity]

Re: Bankruptcy COMI and Other Questions

Hi Bobby. The law says the greater part of 6 months- to be pedantic, the bits of the petition form that you will fill in says "for the longer part of that period..." so the same thing. Actually let's look directly at the petition form itself. So you are saying to the court the following:
I am resident in England and Wales. I am presenting this petition to this county court because within the 6 months immediately preceding the presentation of this petition I have not carried on business in England and Wales but resided in England and Wales and for the longest part of the period during which I resided in England and Wales within that period of 6 months, I resided in the district of this county court.


So Bobby I think you can see how the law means 3 months and 1 day.

I tend to point people towards the 6 months mark so that nothing flags up as being perhaps "contrived". I'm being over cautious really. In fact the chief bankruptcy registrar at the High Court said at a conference I attended last April that he couldn't care less about that and what is important is that you really do live here and that you can demonstrate that is so. He added that he couldn't care less if the only reason you are here is to go bankrupt either. There is nothing in the law that prevents you from doing so.

Finally, I want to reiterate the point I made about what I described as the "threshold of proof". You are English and have English debt so when you walk in the Court and deal with the OR they aren't automatically looking out for COMI issues. In simple terms really in your case it is that you are "habitually resident" over the last 6 months within the jurisdiction area of that Court that is important.

I'm only able to give some general guidance here and can't speak for or about what a court or Official receiver will or will not do in your case.

Can you say which Court it will be? I can tell you what that Court is like generally if I know it.-I may not of course. PM me if that's best.

[Bobby1983]

Re: Bankruptcy COMI and Other Questions

I have pmed you.

Thanks for the advice.

Regards

Bobby

[DebtSanity]

Re: Bankruptcy COMI and Other Questions

Keep the questions coming Bobby- take advantage of me!

[Bobby1983]

Re: Bankruptcy COMI and Other Questions

Is habitual residency different from COMI. I can show the COMI with account and rent etc. How is that then specifically determined in this case.

Also so that I have knowledge of the actions of the OR, if bankruptcy is granted what do they want, paperwork wise from creditors etc. Statements or loan agreements etc and what communication have they wigh creditors This is so I could maybe get things started now. I have sone but not all correspondance.

Cheers

[DebtSanity]

Re: Bankruptcy COMI and Other Questions

Habitual residence was just simply a term coined by a Judge when looking at someone's COMI. He considered someone's COMI to be where they "habitually reside". So you might say where, if someone knocked on your door over the best part of the last 6 months, this is where they'd likely find you. Don't overthink this.

As for what the OR might want I don't know enough about your case to say. Often times they don't want anything at all. If they want something they will soon let you know.

An example of when they might ask for something is if your income is above the norm and yet your expenditure is high too and on the face of it there's nothing to be had in the way of surplus income. Then they might ask for 6 months bank statements to track your expenditure through. It's reasonably common especially nowadays as they are ever more keen on squeezing an Income payment out of you if they can- all according to ability to pay though so don't over worry about that.

As I say, without knowing the ins and outs of your case I cannot say what they will or won't ask for.

In terms of communications with creditors this is more straight forward.

They prepare a report to creditors summarising your assets and liabilities and attach a proof of debt form for their completion and return. That's about it in normal circumstances.

I have no idea what your income and expenditure looks like but take care over it as it will be time well spent if you might have surplus income.

[Bobby1983]

Re: Bankruptcy COMI and Other Questions

Dear Debtsanity

I had my bankruptcy hearing on Friday 13th and thw Judge has adjourned it until next Wednesday. She has asked me to produce a statement saying where I have been living for the last 6 months. I can produce COMI from the 31st October 2014 at my new address.

Change of driving license and issue date
Input on the electoral register
Crediting of a mobile phone top up

Other details for COMI I can only produce from the 10th November. This is still within the remit of "the greater part of 6 months". I have written a statement of truth and attached evidence.

Is that enough for the judge or will they refuse my petition. If they do refuse the petition, when can I do things again.

Thanks

Bobby