You will be pleased, I hope, to hear that in this blog I shall largely be steering the referendum itself a wide berth; this is not because the prospect of Brexit would not impact greatly on insolvency law and practice (it undoubtedly would) but because I have already blogged on that topic in March and issued press releases on it in so far as it affects business decision making under the R3 banner, but mainly

This blogpost was first published as an edited article in Business Magazine’s June 2016 edition (available here).

Directors at risk in the twilight zone

Before I hazard any kind of answer to the above, let me first declare my interest in the #Brexit / #Bremain debate, from the perspective of an insolvency lawyer.

So-called “Creditor Portals”, and other similarly titled electronic platforms by which insolvency practitioners typically circulate any meaningful information to creditors about insolvent estates, have been a bugbear of mine ever since they were first used a little while ago. Don’t get me wrong; I absolutely applaud the attempt which they represent to minimise the amount of unnecessary paperwork circulating around the country and the savings of cost which they bring to the administration of insolvent estates where the cost of copying and posting alone would be absolutely frightening today.

In a written statement this morning from Lord Faulks QC, Minister of State for Civil Justice, the government has announced that, from April 2016, insolvency litigation will no longer be exempt from what have been abbreviated to “the LASPO reforms”.

Regular readers of my blogs over the years will know that I never pass up a chance to use a musical analogy for business problems. As an insolvency lawyer with a second calling treading the boards, my legal practice and my music frequently vie for my attention: never more so than during the Christmas season.

Several of the Official Bankruptcy Forms will be replaced on December 1, 2015. For creditors, the most notable changes will be to two forms: the Proof of Claim form, Form 410, and the Mortgage Proof of Claim Attachment, Form 410A. These changes reflect an effort by the Bankruptcy Courts to elicit a clear and complete picture of what the debtor owes and how much must be paid to cure a pre-bankruptcy arrearage. Due to the Bankruptcy Court’s focus on clarity, creditors are well advised to closely follow the claim forms and accompanying instructions.

I am often asked “what do you do”? If I reply “a regulatory solicitor”, this inevitably elicits a blank expression from the enquirer (be that a non-lawyer or lawyer), so I go on to the more long-winded version, that I am a criminal solicitor who advises business owners and other stakeholders on how to stay on the right side of the criminal law, and defends them when they get it wrong.

The Indiana Court of Appeals recently held that creditors must move for an in personam remedy in the original foreclosure judgment or forfeit their right to collect deficiency funds. In Elliott v. Dyck O’Neal, the bank foreclosed upon a borrower’s residence, and sought judgment against the borrowers for the full amount of the outstanding balance in the complaint. The motion for default judgment, and accompanying order, however, only sought an order in rem for the outstanding debt—omitting any mention of an in personam remedy.

It was far from a secret that a veritable smorgasbord of phased changes to insolvency law were coming in on 1 October. The legal and insolvency press has been riddled with it, and frankly the flavours were all a bit predictable. The commentators falling over themselves to ask mundane questions such as “are you ready for…?” and “what will happen now…?” are really just asking “we are really up to date on the new law, aren’t we brilliant?”; of course you are, but you’re not getting any marks for originality.