SHERIFF COURT Citation and commencement 1 1 This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996 Amendment 2004 and shall come into force on 4th December 2004. 2 This Act of Sederunt shall be inserted in the Books of Sederunt. Amendment of the Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996 2 The Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996 (hereinafter referred to as “the Principal Rules”) shall be amended in accordance with Articles 3 to 9 of this Act of Sederunt. Duty of creditor and court to be satisfied that no approved debt payment programme is in force 3 The Principal Rules shall be amended by inserting after rule 16– Duty of creditor and court to be satisfied that no approved debt payment programme within the meaning of section 2 of the Debt Arrangement and Attachment (Scotland) Act 2002 is in force or if in force the creditor is entitled to petition 17 1 Where a creditor is petitioning for the sequestration of a debtor, the creditor, at the lodging of the petition and immediately prior to the hearing to determine whether an award of sequestration is to be made in relation to the petition for sequestration, shall satisfy himself that at that date (a) the debtor is not subject to an approved debt payment programme, or (b) if there is an approved debt payment programme in force, the creditor is entitled to the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002. 2 Having satisfied himself at the times referred to in paragraph (1), the creditor shall at those times lodge a statement in the court to the effect that he has so satisfied himself; and the sheriff may not award sequestration in respect of such a petition unless such a statement has been lodged, or the court is otherwise satisfied that there is as of the date of the award of sequestration no such approved debt payment programme in force or there is a debt payment programme in force but the creditor is entitled to the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002. 3 The statement referred to in paragraph (2) shall be in Form 19. Duty of concurring creditor and court to be satisfied that no approved debt payment programme within the meaning of section 2 of the Debt Arrangement and Attachment (Scotland) Act 2002 is in force or if in force the creditor is entitled to concur in the petition 18 1 Where a creditor is concurring in a petition for the sequestration of a debtor, the creditor, when concurring shall satisfy himself that at that date (a) the debtor is not subject to an approved debt payment programme, or (b) if there is an approved debt payment programme in force, the concurring creditor is entitled to concur in the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002. 2 Having satisfied himself as referred to in paragraph (1), the concurring creditor shall make a statement for lodging in the court to the effect that he has so satisfied himself; and the sheriff may not award sequestration in respect of such a petition unless such a statement has been lodged, or the court is otherwise satisfied that there is as of the date of the award of sequestration no such approved debt payment programme in force or there is a debt payment programme in force but the creditor is entitled to concur in the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002. 3 The statement referred to in paragraph (2) shall be in Form 20. . Amendment of Form 1 4 1 Form 1 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 1 of the form: 1A I certify that: a I have my centre of main interests or an establishment in the United Kingdom as defined in the EC Regulation on insolvency proceedings ; b I have my centre of main interests or an establishment as defined above in a Member state other than the United Kingdom; c I have neither my centre of main interests nor an establishment in the United Kingdom nor in a Member state other than the United Kingdom. 2 Form 1 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 3 of the form:– Attached is a statement by each of the qualified creditors who concurs in this petition stating that the debtor of the debt in relation to which he or she is giving concurrence is not the subject of an approved debt payment programme within the meaning of section 2 of the Debt Arrangement and Attachment (Scotland) Act 2002 or the debtor to which the petition relates is in an approved debt payment programme but the debt in relation to which he or she is giving concurrence is not of a class covered by section 4(5)(b) of that Act. . 3 Form 1 contained in Appendix 1 to the Schedule to the Principal Rules shall be amended by insertion after paragraph 6 of that form: 6A a I am subject to an approved debt payment programme; or b I am not subject to an approved debt payment programme. c I have made application for approval of a debt payment programme; or d I have not made application for approval of a debt payment programme. Amendment of Form 2 5 1 Form 2 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 1 of the form: 1A I certify that: a I have my centre of main interests or an establishment in the United Kingdom as defined in the EC Regulation on insolvency proceedings; b I have my centre of main interests or an establishment as defined above in a Member state other than the United Kingdom; c I have neither my centre of main interests nor an establishment in the United Kingdom nor in a Member state other than the United Kingdom. . 2 Form 2 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion after paragraph 6 of that form:– 6A a I am subject to an approved debt payment programme; or b I am not subject to an approved debt payment programme. c I have made application for approval of a debt payment programme; or d I have not made application for approval of a debt payment programme. 3 Form 2 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by substituting in paragraph 2 of the Note to the form “attachment (or an attempt to attach)” for “poinding”. 4 Form 2 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion after paragraph 7 on page 2 of that form: 8 You are apparently insolvent in terms of section 7(1) (c)(vii) of the Bankruptcy (Scotland) Act 1985 because a) you were party to an approved debt payment programme under the Debt Arrangement and Attachment (Scotland) Act 2002 which has been revoked; and b) a debt being paid under the programme is constituted by decree or document of debt as defined in section 10 (attachment) of that Act. . Amendment of Form 3 6 1 Form 3 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 1 of the Statement of Facts of that form: 1A As far as is within the knowledge of the petitioner: a the debtor has his centre of main interests or an establishment in the United Kingdom as defined in the EC Regulation on insolvency proceedings ; b the debtor has his centre of main interests or an establishment as defined above in a Member state other than the United Kingdom; c the debtor has neither his centre of main interests nor an establishment in the United Kingdom nor in a Member state other than the United Kingdom. . 2 Form 3 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 2 of that form:– Attached is a statement by each of the petitioning creditors stating that the debtor of the debt in relation to which the petitioning creditor is petitioning is not the subject of an approved debt payment programme within the meaning of section 2 of the Debt Arrangement and Attachment (Scotland) Act 2002 or the debtor to which the petition relates is in an approved debt payment programme but the debt in relation to which he is petitioning is not of a class covered by section 4(5)(b) of that Act. . Amendment of Form 4 7 Form 4 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 1 of the Statement of Facts of that form: 1A As far as is within the knowledge of the petitioner: a the debtor has his centre of main interests or an establishment in the United Kingdom as defined in the EC Regulation on insolvency proceedings; b the debtor has his centre of main interests or an establishment as defined above in a member State other than the United Kingdom; c the debtor has neither his centre of main interests nor an establishment in the United Kingdom nor in a Member state other than the United Kingdom. . Form 19 8 After Form 18 in the Appendix to the Schedule to the Principal Rules shall be inserted: Form 19 Form of statement to be lodged by creditor in petitioning for sequestration. *The petitioner states that at the date of lodging of this petition the petitioner has checked with the DAS Register that the debtor of whom sequestration is craved is not subject to an approved debt payment programme or there is a debt payment programme in force but the petitioner is entitled to the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002. *The petitioner states that immediately before the calling of this petition the petitioner has checked with the DAS Register that the debtor of whom sequestration is craved is not subject to an approved debt payment programme or there is a debt payment programme in force but the petitioner is entitled to the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002. *Delete as appropriate. . Form 20 9 After Form 19 in the Appendix to the Schedule to the Principal Rules shall be inserted: Form 20 Form of statement to be lodged by concurring creditor with petition for sequestration. The concurring creditor states that at the date of concurring in this petition the concurring creditor has checked with the DAS Register that the debtor of whom sequestration is craved is not subject to an approved debt payment programme or there is a debt payment programme in force but the concurring creditor is entitled to concur in the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002. . CULLEN OF WHITEKIRK Lord President I.P.D. Edinburgh 3rd December 2004