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| Made | 7th March 2007 | ||
| Laid before the Scottish Parliament | 8th March 2007 | ||
| Coming into force | 30th June 2007 |
The Scottish Ministers, in exercise of the powers conferred by sections 2(3), 4(5), 5(4), 6(1), 7 and 62(2) of the Debt Arrangement and Attachment (Scotland) Act 2002[1] and of all other powers enabling them in that behalf, hereby make the following Regulations:
Citation and commencement
1. These Regulations may be cited as the Debt Arrangement Scheme (Scotland) Amendment (No .2) Regulations 2007, and come into force on 30th June 2007.
Interpretation
2. In these Regulations "the 2004 Regulations" means the Debt Arrangement Scheme (Scotland) Regulations 2004[2].
Amendments to the 2004 Regulations
3. —(1) The 2004 Regulations are amended in accordance with paragraphs (2) to (33).
(2) In regulation 2 (interpretation: general)–
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(a) for the definition of "protected trust deed" substitute–
-
"
"protected trust deed" has the meaning given by section 73(1) of the 1985 Act;"; and
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(b) for the definitions of "sheriff" and "sheriff principal" substitute–
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"
"sheriff" means the sheriff of the sheriff court district in which a debtor habitually resides;".
(3) In regulation 8 (approval of a money adviser), in paragraph (4), for the word "2" substitute "3".
(4) In regulation 10(2) (persons who are not to be money advisers)–
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(a) in sub paragraph (e), for "sections 54[3] (automatic discharge after 3 years)" substitute "section 54 (automatic discharge after a year)";
(b) in sub paragraph (g), at the end add "or under section 56A or as the case may be 56F or 56G of the 1985 Act[4]"; and
(c) in sub paragraph (h), for "entered into" substitute "granted".
(5) In regulation 11 (functions and duties of a money adviser)–
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(a) in paragraph (1)–
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(i) in sub paragraph (e), for the word "sixth" substitute "twelfth"; and
(ii) omit sub paragraph (g); and
(b) omit paragraph (2).
(6) In regulation 18 (information on the DAS Register)–
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(a) in paragraph (2)–
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(i) before sub paragraph (a) insert–
-
"
(za) an intimation under regulation 22(2A);";
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(ii) for sub paragraphs (b) and (c) substitute–
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"
(ba) an intimation under regulation 20(3);
(bb) a notice under regulation 31(1);";
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(iii) omit sub paragraph (f); and
(iv) in sub paragraph (h), omit "or sheriff principal"; and
(b) in paragraph (3), after "each debtor" insert "who has given intimation under regulation 22(2A),".
(7) Omit regulation 19.
(8) In regulation 20 (application for approval of debt payment programme)–
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(a) in paragraph (2)(c), for "section 7(4)" substitute "section 2(4)"; and
(b) at the end add–
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"
(3) The debtor may, at any time before the application is approved or rejected, intimate to the DAS administrator that the application is withdrawn.".
(9) In regulation 21(2) (debtors who may apply for approval of debt payment programmes)–
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(a) in sub paragraph (c), for "sections 54 (automatic discharge after 3 years)" substitute "section 54 (automatic discharge after a year)"; and
(b) in sub paragraph (e), at the end add "or under section 56A or as the case may be 56F or 56G of the 1985 Act".
(10) In regulation 22 (consent of every creditor)–
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(a) in paragraph (1), after "paragraph (3)" insert "and to regulation 26";
(b) after paragraph (2) insert–
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"
(2A) A debtor who intends to send a request under paragraph (2) may give written intimation of that intention to the DAS administrator; but a debtor is not to give intimation under this paragraph on more than one occasion in any period of 12 months.";
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(c) omit paragraph (4); and
(d) in paragraph (5)–
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(i) for "regulations 25, 26 or 27" substitute "regulation 25 or 26"; and
(ii) omit "or dispensed with".
(11) Omit regulation 23.
(12) In regulation 24 (composition and waiver of interest)–
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(a) in paragraph (1), omit sub paragraph (b); and
(b) in paragraph (2)(a), omit "or waiver".
(13) The heading to regulation 24 becomes "Composition".
(14) In regulation 26 (approval by the DAS administrator)–
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(a) in paragraph (1), for "Subject to regulations 25 and 27" substitute "Where approval cannot be given under regulation 25"; and
(b) in paragraph (2)–
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(i) after sub paragraph (b) insert–
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"
(ba) the amount (if any) by which it appears to the DAS administrator, on the basis of such information as the creditors and the debtor have provided, that the value of any land owned by the debtor exceeds so much of the total amount of debt as is secured by way of a standard security over any interest in that land;"; and
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(ii) in sub paragraph (g), omit "or objected".
(15) Omit regulation 27.
(16) In regulation 28(2) (approval of a debt payment programme), for "of the second day after the date of the entry under paragraph (1) in the DAS Register" substitute "on the day immediately preceding that on which the notice is so entered".
(17) In regulation 29(1) (standard conditions), for "regulations 25, 26 or 27" substitute "regulation 25 or 26".
(18) In regulation 30(1) (discretionary conditions), for "regulations 25, 26 or 27" substitute "regulation 25 or 26".
(19) In regulation 31 (notification of approval or rejection of a debt payment programme)–
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(a) in paragraph (1), for "of the application for approval" substitute ", on an application,";
(b) in paragraph (2), for "an application for approval of a" substitute "the";
(c) in paragraph (3)–
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(i) for "an application for approval of a" substitute "the"; and
(ii) in sub paragraph (b), for "approval" substitute "programme"; and
(d) in paragraph (4), in each of sub paragraphs (a) and (b), for "an application" substitute "the programme".
(20) After regulation 31 insert–
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"
Diligence in the period before a debt payment programme is approved
31A. —(1) It is not competent to serve a charge for payment in respect of, or to commence or execute any diligence to enforce payment of, any debt–
-
(a) during the period of 6 weeks immediately following an intimation by the debtor being entered in the DAS Register under sub paragraph (za) of regulation 18(2); or
(b) during the period immediately following an application by the debtor being entered in that Register under sub paragraph (a) of regulation 18(2) and ending on the earliest of the dates mentioned in paragraph (2).
(2) The dates are–
-
(a) that on which a notice that the debt payment programme is approved is entered in the DAS Register;
(b) that on which notice of rejection of the debt payment programme, sent under regulation 31(1), is so entered; and
(c) that on which intimation of withdrawal of the application in respect of the debt payment programme, given under regulation 20(3), is so entered.
(3) During any such period as is mentioned in sub paragraph (a) or (b) of paragraph (1), it is not competent in respect of the debt–
-
(a) to make, under section 97(2) of the Bankruptcy and Diligence etc. (Scotland) Act 2007[5], an order granting warrant for sale of attached land; or
(b) to make, under section 136(2) of that Act, a satisfaction order.
(4) If an arrestment such as is mentioned in subsection (1) of section 73H of the Debtors (Scotland) Act 1987[6] (automatic release of arrested funds) has been granted in respect of funds due to the debtor, it is not competent, during any such period as is so mentioned, to release funds under subsection (2) of that section; but the period in question is to be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.".
(21) In regulation 35(1) (effect on a creditor), omit sub paragraphs (a) and (aa)[7].
(22) In regulation 36 (effect on a debtor), for "enter into" substitute "grant".
(23) After regulation 36 insert–
-
"
Diligence: further provision as regards effect of debt payment programme
36A. —(1) Where a debt payment programme is approved, it is not competent in respect of any debt–
-
(a) to make, under section 97(2) of the Bankruptcy and Diligence etc. (Scotland) Act 2007, an order granting warrant for sale of attached land; or
(b) to make, under section 136(2) of that Act, a satisfaction order.
(2) If an arrestment such as is mentioned in subsection (1) of section 73H of the Debtors (Scotland) Act 1987 (automatic release of arrested funds) has been granted in respect of funds due to the debtor, it is not competent, where a debt payment programme is approved, to release funds under subsection (2) of that section; but if the debt payment programme is revoked the period between its being approved and being revoked is to be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.".
(24) In regulation 37(5) (application for variation), for sub paragraph (b) substitute–
-
"
(b) on behalf of the debtor may be made by electronic means, but if so the money adviser shall retain the form 8, signed by the money adviser in accordance with section 3(2) of the Act, for a period of 5 years or for the period of the programme (whichever is longer).".
(25) In regulation 38(1)(d) (grounds for variation), after "omitted from" insert ", or was wrongly assessed for,".
(26) In regulation 39 (approval of a variation)–
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(a) in paragraph (2), omit "Subject to paragraph (3),";
(b) omit paragraph (3); and
(c) in paragraph (4)–
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(i) omit ", or sheriff as the case may be,"; and
(ii) in sub paragraph (b), omit "or sheriff".
(27) In regulation 40 (notification of approval or rejection of a variation)–
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(a) in each of paragraphs (1) and (2), for "an application for" substitute "a";
(b) in paragraph (3), for "an application for variation" substitute "a variation of a programme"; and
(c) in paragraph (4)–
-
(i) for "the application for" substitute "a"; and
(ii) in sub paragraph (c)(ii), omit "to be approved".
(28) In regulation 41 (revocation on sequestration) omit "Approval of".
(29) In regulation 42 (application for revocation)–
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(a) in paragraph (1)–
-
(i) omit "the approval of"; and
(ii) for sub paragraph (a) substitute–
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"
(a) a money adviser on behalf of the debtor;"; and
(b) after paragraph (2) add–
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"
(3) Any such application on behalf of the debtor may be made by electronic means, but if so the money adviser shall retain the form 10, signed by the money adviser, for a period of 5 years or for the period of the programme (whichever is the longer).".
(30) In regulation 43 (grounds for revocation)–
-
(a) omit "Approval of";
(b) the existing words of the regulation (as so amended) become paragraph (1); and
(c) after that paragraph add–
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"
(2) A debt payment programme may be revoked by the DAS administrator (whether or not on an application under regulation 42) where the DAS administrator is satisfied that, for a continuous period of 6 months, the payments distributor has not received the sums which, in accordance with the debt payment programme, ought to have been received for distribution.
(3) A DAS administrator who proposes to revoke, under paragraph (2), a debt payment programme other than on an application under regulation 42 must give written notice of that proposal to–
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(a) the debtor;
(b) each creditor who is being paid under the programme; and
(c) any creditor who has made an application for variation of the programme,
and is not to implement the proposal until the expiry of a period of at least 4 weeks after the notice is given.".
(31) In regulation 44 (determination of a revocation)–
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(a) in paragraph (1), at the end add–
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"
(d) where notice of proposed revocation is given under paragraph (3) of regulation 43, any representations made by the debtor or by the creditors, as regards the proposal, during the period mentioned in that paragraph."; and
(b) in paragraph (2), omit "an approval of".
(32) In regulation 50 (appeals)–
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(a) omit paragraphs (4) and (5);
(b) in paragraph (6)[8], omit sub paragraph (b); and
(c) in paragraph (7), omit "or sheriff principal, as the case may be,".
(33) In Schedule 1 (which makes provision as regards forms)–
-
(a) in the arrangement of forms, omit the entries for forms 7 and 7(a);
(b) for form 3 (application for approval of a debt payment programme), substitute the form set out in Schedule 1 to these Regulations;
(c) for form 4 (notification to creditor of application for approval of a debt payment programme), substitute the form set out in Schedule 2 to these Regulations;
(d) for form 5 (notification of approval of a debt payment programme), substitute the form set out in Schedule 3 to these Regulations;
(e) omit forms 7 and 7(a);
(f) for form 8 (application for variation of a debt payment programme), substitute the form set out in Schedule 4 to these Regulations; and
(g) for form 10 (application for revocation of a debt payment programme), substitute the form set out in Schedule 5 to these Regulations.
Saving
4.
Except in so far as these Regulations relate to an application such as is mentioned in regulation 49A(2) of the 2004 Regulations (or relate to any variation consequent upon such an application), nothing in these Regulations affects a debt payment programme in respect of which a request was made under regulation 22(2) of the 2004 Regulations before the date on which these Regulations came into force.
ALLAN WILSON
Authorised to sign by the Scottish Ministers
St Andrew's House, Edinburgh
7th March 2007
(This note is not part of the Regulations)
The Debt Arrangement Scheme (Scotland) Regulations 2004 ("the 2004 Regulations"), made under the Debt Arrangement and Attachment (Scotland) Act 2002, provide a scheme for repayment of multiple debts in Scotland. Part 13 of the Bankruptcy and Diligence (Scotland) Act substantially amended that Act of 2002.
These Regulations, which amend the 2004 Regulations, simplify the process under which applications for approval of debt payment programmes are determined and rationalise the effect which such programmes are to have on diligence generally.
Notes:
[1] 2002 asp 17. Section 9(1) contains a definition of "prescribed" relevant to the exercise of the statutory powers under which these Regulations are made. Section 2 has been amended by sections 211(2) and 212(2) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) ("the 2007 Act"). Section 4 has been amended by regulation 35(4) of the Debt Arrangement Scheme (Scotland) Regulations 2004 (S.S.I. 2004/268). Section 5 has been amended by section 212(4) of the 2007 Act. Section 7 has been amended by section 212(5) of the 2007 Act. Section 62 has been amended by section 211(4) of the 2007 Act.back
[2] S.S.I. 2004/468, amended by S.S.I. 2004/470.back
[3] 1985 c.66. Section 54 has been amended by the Education (Student Loans) Act 1990 (c.6), section 1(5) and Schedule 2, paragraph 6(c)(ii), and is prospectively amended by section 1 of the 2007 Act.back
[4] 1985 c.66. Sections 56A, 56F and 56G are prospectively inserted by section 2 of the 2007 Act.back
[6] 1987 c.18. Section 73H is prospectively inserted by section 206 of the 2007 Act.back
[7] Sub-paragraph (aa) was inserted by S.S.I. 2004/470, regulation 11(a).back
[8] Paragraph (6) was substituted by regulation 14 of the Debt Arrangement Scheme (Scotland) Amendment Regulations 2004 (S.S.I. 2004/470).back
ISBN 978 0 11 072578 9