SCHEDULES
C1SCHEDULE 5 Voluntary Trust Deeds for Creditors
Remuneration of trustee
1
Whether or not provision is made in the trust deed for auditing the trustee’s accounts and for determining the method of fixing the trustee’s remuneration or whether or not the trustee and the creditors have agreed on such auditing and the method of fixing the remuneration, the debtor, the trustee or any creditor may, at any time before the final distribution of the debtor’s estate among the creditors, have the trustee’s accounts audited by and his remuneration fixed by the Accountant in Bankruptcy.
F16Accountant in Bankruptcy's power to carry out audit
Sch. 5 para. 1A and preceding cross-heading inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 23(1), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
1A
The Accountant in Bankruptcy may, at any time, audit the trustee's accounts and fix his remuneration.
Registration of notice of inhibition
2
1
The trustee, from time to time after the trust deed has been delivered to him, may cause a notice in such form as shall be prescribed by the Court of Session by act of sederunt to be recorded in the register of inhibitions and adjudications; and such recording shall have the same effect as the recording in that register of letters of inhibition against the debtor.
2
The trustee, after the debtor’s estate has been finally distributed among his creditors or the trust deed has otherwise ceased to be operative, shall cause to be so recorded a notice in such form as shall be prescribed as aforesaid recalling the notice recorded under sub-paragraph (1) above.
Lodging of claim to bar effect of limitation of actions
3
The submission of a claim by a creditor to the trustee acting under a trust deed shall bar the effect of any enactment or rule of law relating to limitation of actions in any part of the United Kingdom.
Valuation of claims
4
Unless the trust deed otherwise provides, Schedule 1 to this Act shall apply in relation to a trust deed as it applies in relation to a sequestration but subject to the following modifications—
a
in paragraphs 1, 2 and 5 for the word “sequestration” wherever it occurs there shall be substituted the words “granting of the trust deed”;
b
in paragraph 3—
i
in sub-paragraph (2), for the words from the beginning of paragraph (a) to “or sheriff” there shall be substituted the words “the trustee”; and
ii
in sub-paragraph (3), for the reference to the permanent trustee there shall be substituted a reference to the trustee;
c
paragraph 4 shall be omitted; and
d
in paragraph 5(2) for the references to the permanent trustee there shall be substituted references to the trustee.
Protected trust deeds
F15
1
The Scottish Ministers may by regulations make provision as to—
a
the conditions which require to be fulfilled in order for a trust deed to be granted the status of a protected trust deed;
b
the consequences of a trust deed being granted that status;
c
the rights of any creditor who does not accede to a trust deed which is granted protected status;
d
the extent to which a debtor may be discharged, by virtue of a protected trust deed, from his liabilities or from such liabilities or class of liabilities as may be prescribed in the regulations;
e
the circumstances in which a debtor may bring to an end the operation of a trust deed in respect of which the conditions provided for under sub-paragraph (a) above are not fulfilled;
f
the administration of the trust under a protected trust deed (including provision about the remuneration payable to the trustee).
2
Regulations under this paragraph may—
a
make provision enabling applications to be made to the court;
b
contain such amendments of this Act as appear to the Scottish Ministers to be necessary in consequence of any other provision of the regulations.
F26
Where the provisions of paragraph 5 of this Schedule have been fulfilled, then—
F3a
subject to paragraph 7 of this Schedule, a creditor who has—
i
not been sent a copy of the notice as mentioned in paragraph 5(1)(c) above; or
ii
notified the trustee of his objection to the trust deed as mentioned in paragraph 5(1)(d) above,
shall have no higher right to recover his debt than a creditor who has acceded to the trust deed;
b
the debtor may not petition for the sequestration of his estate while the trust deed subsists.
F47
1
A qualified creditor F5who has not been sent a copy of the notice as mentioned in paragraph 5(1)(c) above or who has notified the trustee of his objection to the trust deed as mentioned in paragraph 5(1)(d) above may present a petition for sequestration of the debtor’s estate—
a
not later than 6 weeks after the date of publication of the notice under F6paragraph 5(1)(b) of this Schedule; but
b
subject to section 8(1)(b) of this Act, at any time if he avers that the provision for distribution of the estate is or is likely to be unduly prejudicial to a creditor or class of creditors.
2
The court may award sequestration in pursuance of sub-paragraph (1)(a) above if it considers that to do so would be in the best interests of the creditors.
3
The court shall award sequestration in pursuance of sub-paragraph (1)(b) above if, but only if, it is satisfied that the creditor’s said averment is correct.
F78
In this Act a trust deed in respect of which paragraphs 6 and 7 of this Schedule apply is referred to as a “protected trust deed”.
F89
Where the trustee under a protected trust deed has made the final distribution of the estate among the creditors, he shall, not more than 28 days after the final distribution, send to the Accountant in Bankruptcy for registration in the register of insolvencies—
a
a statement in the prescribed form indicating how the estate was realised and distributed; and
b
a certificate to the effect that the distribution was in accordance with the trust deed.
F910
Where the trustee under a protected trust deed has obtained a discharge from the creditors who have acceded to the trust deed he shall forthwith give notice of the discharge—
a
by sending the notice by recorded delivery to every creditor known to him F10who has not been sent a copy of the notice as mentioned in paragraph 5(1)(c) above or who has notified the trustee of his objection to the trust deed as mentioned in paragraph 5(1)(d) above; and
b
by sending the notice to the Accountant in Bankruptcy who shall register the fact of the discharge in the register of insolvencies,
and, except where the court makes an order under paragraph 12 below, the sending of such notice to a creditor F10who has not been sent a copy of the notice as mentioned in paragraph 5(1)(c) above or who has notified the trustee of his objection to the trust deed as mentioned in paragraph 5(1)(d) above shall be effective to make the discharge binding upon that creditor.
F15 Creditors not acceding to protected trust deed
Sch. 5 para. 5 substituted (19.2.2008) for Sch. 5 paras. 5-13 by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 20(1), 227(3) (with s. 223); S.S.I. 2008/45, art. 2 (with art. 3)
F1111
A creditor F12who has not been sent a copy of the notice as mentioned in paragraph 5(1)(c) above or who has notified the trustee of his objection to the trust deed as mentioned in paragraph 5(1)(d) above may, not more than 28 days after notice has been sent under paragraph 10 above, apply to the court for an order under paragraph 12 below.
F1312
Where, on an application by a creditor under paragraph 11 above, the court is satisfied (on grounds other than those on which a petition under paragraph 7(1)(b) above was or could have been presented by that creditor) that the intromissions of the trustee under the protected trust deed with the estate of the debtor have been so unduly prejudicial to that creditor’s claim that he should not be bound by the discharge it may order that he shall not be so bound.
F1413
Where the court makes an order under paragraph 12 above, the clerk of court shall send a copy of the order to—
a
the trustee; and
b
the Accountant in Bankruptcy who shall register the copy of the order in the register of insolvencies.
Sch. 5 modified (10.8.2005) by The Insurers (Reorganisation and Winding Up) Regulations 2004 (S.I. 2004/353), reg. 33(7) (as amended by The Insurers (Reorganisation and Winding Up) (Lloyd's) Regulations 2005 (S.I. 2005/1998), reg. 40(11)