Motivating Debtors to Pay: Understanding The Bankruptcy Process

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Once you have obtained judgment against your debtor, the next question that arises is how to enforce that judgment. A way to quickly proceed and to motivate the individual to focus on payment of the Judgment Sum is to serve a bankruptcy notice.

At Smith and Partners, we ensure our clients are fully aware of the steps involved in the bankruptcy process and the costs involved in each step. We understand that it is often an area of law where most of our clients have not had the need to be involved in.

First Step
We will obtain a Certificate of Judgment from the District Court (or other Court) to enable us to enforce that Judgment in the High Court. Bankruptcy proceedings are always dealt with in the nearest High Court.

Second Step
File and serve the bankruptcy notice on the individual. Personal service is required and evidence of this service needs to be provided to the Court. There are times where service is difficult for reasons where the individual is attempting to avoid service. In this case, we can make an application to the Court for an order to serve the individual by other means such as posting into their letterbox or affixing to the front door of the house for example.

This puts the individual on notice that they have 10 working days from the date of service to comply with the Bankruptcy Notice by paying the sum set out in the Bankruptcy Notice. Upon expiry of the time given in bankruptcy notice, an act of insolvency has been established.

Third Step
A creditor’s application to the Court for an Order for Adjudication (or bankruptcy) is then applied for together with an affidavit in support. The creditor’s application together with a summons to the debtor to appear in Court is then served on the individual to advise them of the bankruptcy hearing. Once again, evidence of service by way of an affidavit is required to be served in the Court to show this has been done accurately.

Hearing
The day of the bankruptcy hearing comes around and you as the creditor will be required to provide evidence that the debt remains unpaid by the individual. If the Court is satisfied that the above process has been followed accurately an order will be made to adjudicate the individual bankrupt.

If the hearing is undefended it is often a simple process. Should there be a defence, we will provide you with an accurate estimate of costs to allow you to make an informed decision as to whether you wish to proceed.

Being served with a bankruptcy notice is often enough to motivate the individual to focus on paying the judgment sum to avoid the proceedings going any further.

For further information in relation to issuing bankruptcy proceedings or to receive an estimate of costs (including disbursements), please feel free to contact Wendy Alexander on (09) 837 6844 or by email on wendy.alexander@smithpartners.co.nz