Thank you and I have attempted to negotiate settlement

In regard to the money owed, if the debt claimed is one that has been moved over to a collection agency to pursue, you will be able to negotiate the debt amount.

Generally, when the debt is transferred to a collection agency the debt purchased at a discount by that agency, and if this is the case in your particular situation you may offer a settlement percentage which you can pursue.

No credit collection agency wants to put a person into personal bankruptcy as this achieves nothing for either party .

The best way forward is to demonstrate that you do not have the financial capacity to pay the debt, which will require you to engage an accountant to complete a profit and loss statement, and balance sheet on your financials. Then from this position you will be able to show the agency as so to what your true capacity is.

Unfortunately, where you do have assets such as a car or house, the collection agency will pursue a judgment debt against you to obtain an enforcement order to sell these assets to settle the debt.

Personal bankruptcy is not often talked about, because it is one of those topics that people do not want to associate themselves with when a particular individual has become bankrupt. People can be vicious, and sometimes bankruptcy is not the fault of the person and others do not see it that way.

So what are the impacts on a person when they are bankrupt?

Bankruptcy can be a lengthy process for an individual, and can continue well after the three year period on which a bankruptcy may be discharged against that person.

When a person is made bankrupt the impact on that individual can be long lasting with the loss of face from family, friends and the business community. There is a mark of failure branded on the individual or humiliating character if the person cannot arise above the stigma that is upon them because of the bankruptcy. It often occurs that society will shun a bankrupt as a criminal, when in fact some circumstances they are not.

However, the blame for losses will eventually lay upon the bankrupt. Someone has to take the ‘fall’ for the decisions that were made, whether right or wrong.

The bankrupt has a number of important rules to follow. The bankrupt must attend meetings of creditors as the trustee requires. The bankrupt will be questioned in detail, which may be demeaning for the bankrupt. The bankrupt has to answer questions, disclose property, financial dealings, which may include with other people, companies, partnerships and entities.

The trustee will investigate the conduct of the bankrupt, accounts, and all other examinable affairs. The bankrupt will be required to deliver records and information as needed by the trustee. The bankrupt has to allow the trustee reasonable access to their premises and records. If the bankrupt fails to comply with the administration requirements of the bankruptcy process, the trustee may seek assistance from the court that the bankrupt be examined by the court, and other orders placed on the bankrupt to comply with the orders of the trustee.

If the bankrupt fails or refuses to comply with an order from the court, the bankrupt may be arrested and jailed if insufficient reason is provided by the bankrupt for failing to comply with an order.

If the bankrupt changes their name or address they need to notify the trustee and failure of is an offence, and may result in an objection to the discharge of the bankrupt when that time occurs.

When a bankrupt is working and their income reaches a certain threshold, the trustee may require the bankrupt to make contributions from their income under the direction of the trustee. Where the bankrupt fails to comply with the trustee direction, an automatic discharge from bankruptcy may be stopped.

Where a bankrupt has other accounts with banks or other financial institutions in Australia, the bankrupt cannot remove funds from those accounts, and those financial institutions that hold those funds are not permitted to allow payments out of those accounts unless authorised by the trustee. Then where money of the bankrupt is insecure, a freezing order may be applied against the account by the trustee through obtaining an order of the court.

The bankrupt cannot travel outside Australia unless consent is provided by the trustee, and the bankrupt must surrender their passport to the trustee. If the bankrupt leaves Australia without consent, an offence will have been committed by the bankrupt.

When a bankrupt seeks credit of over $5,447.00 which is indexed per year, the bankrupt is required to disclose to that party they are an undischarged bankrupt. This disclosure may result in the bankrupt not being able to carrying on a business if they are required to obtain credit in some form.

A bankrupt is prohibited from managing a corporation or being part of its management. Then if a bankrupt works in certain professional trades, such as a lawyer, accountant, veterinarian, builder, real estate agent, they will suffer working restrictions. The number of professions that are affected by bankruptcy order is extensive.

If prior to bankruptcy the person was a trustee of a self-managed super fund, and that person is made bankrupt, they can no longer be a trustee of the self-manage super fund.

There are many significant impacts on a bankrupt, and if there are alternative options to avoid bankruptcy they should be considered. For as once you have been made bankrupt the effects will be long lasting.

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If you want to stop the action against the bank towards your person, then consider the following steps, as if the bank has gone against what they said to you then you'll have a claim for misleading conduct

You may have a claim under section 18 of the Australian Consumer Law for misleading and deceptive conduct. In general, misleading someone may include conduct ranging from lying to them, to making false or inaccurate claims, to creating a false impression, to leading them to a wrong conclusion, to omitting important information. Importantly, it is not necessary to establish that the trader intended to mislead or deceive. A person or corporation may have engaged in conduct that was misleading or deceptive even if they have acted honestly and reasonably. Silence may constitute misleading or deceptive conduct, but this will depend on the circumstances of the case.

An objective test is used to decide whether conduct is misleading or deceptive. The court or tribunal will consider whether the conduct was likely to mislead or deceive members of the class or group of persons to whom the conduct was directed.

COMPETITION AND CONSUMER ACT 2010 - SCHEDULE 2

The Australian Consumer Law

18 Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).

The seller cannot rely on a disclaimer or exclusion clause to protect themselves from misleading or deceptive conduct. However, the fine print will still be considered.

Your claim may be brought into the local court.

You can run the case yourself as the court is designed as a low cost forum to resolve disputes.

What you need to do is to write a formal complaint to the company. This complaint needs to be in a chronological order detailing what is the issue and what action you have taken to try and rectify the matter.

The chronological order need to be be numbered with points 1, 2, 3, etc. with each point being a separate item.

The complaint needs to have detailed what you need fixed and for a time limit of a minimum of 7 days to apply.

The complaint then needs to be sent to the dispute resolutions department. Make sure you keep a copy for yourself.

Preferably send the complaint by email.

If you do not receive a reply within 7 days issue a follow up complaint to the first complaint issued.

If no response is received then it is time to commence an action in the local court.

The following link will assist you further.

https://www.magistratescourt.wa.gov.au and www.districtcourt.wa.gov.au

You can lodge this claim directly on their website. The key element of the claim is the points claim that details the matter, This application point will need a little time to prepare the facts, and I recommend that you download the application first, review, fill it out, and then when you are ready lodge the same online

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