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Notes for Guidance - Protected Trust Deeds - Bankruptcy (Scotland) Act 2016

This guidance describes the general functions of Accountant in Bankruptcy and trustees in relation to their responsibilities regarding protected trust deeds (PTDs) which were granted on or after 30 November 2016

9.2 Discharge due to extenuating circumstances

If the trustee considers that the debtor has been affected by extenuating circumstances that are out with their control, can no longer meet their obligations and there is no reasonable prospect of being able to resume meeting their obligations before the end of the 48 month period, the debtor should be discharged.

For the purposes of Section 184B of the Act, extenuating circumstances may include for example any condition or illness which would prevent the debtor from fulfilling their obligations and from the evidence available, there is no reasonable prospect of recovery. The AiB will assess each case of extenuating circumstances based on the individual circumstances. In determining whether discharge should be granted, AiB may have regard to any factor that is considered to be appropriate.

The trustee must provide notice to all the creditors providing details of their considerations under Section 184B of the 2016 Act and seek agreement from creditors to discharge the debtor.

If after 21 days of the notice, a majority in number or a 1/3 in value of creditors consent to discharge the debtor, the trustee must apply to the AiB using a Form 5 to register the debtors discharge on the register of insolvencies.

Once registered the AiB must notify the trustee of the registration and date of debtor discharge. The trustee must then notify the debtor and creditors within 7 days of the date of notification.

However, if a majority in number or a 1/3 in value of creditors object to the proposal to discharge the debtor, the trustee must apply to AiB for a review of the proposal see section 9.3.

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