There are advantages and disadvantages of bankruptcy proceedings for creditors and, if there are other forms of enforcement that might be effective in recovering the debt, you may be advised to consider these.
Advantages and Disadvantages of bankruptcy proceedings
The advantages of making the debtor bankrupt are:
- It is a relatively quick procedure to make the debtor bankrupt. Depending on the availability of court hearing dates (which in many courts are now taking a long time to come through), and the debtor’s response, the procedure could be completed within 2 – 3 months.
- It is the ultimate enforcement process. Once the debtor is made bankrupt, their financial affairs will be looked at by insolvency professionals and, if the debtor does or did have assets with which the debt could be paid, action can be taken to recover those assets for the benefit of creditors.
The disadvantages of making the debtor bankrupt are:
- It is a collective process. It is not your debt alone that is considered, but all debts of the debtor. Most unsecured creditors normally get the same return (dividend).
- Once the bankruptcy commences, the process can be very slow and expensive (which reduces the amount available for distribution to creditors).
- There may be disputes and litigation arising during the course of the administration of the bankruptcy – Being bankrupt
Alternative means of enforcement
Other means of enforcement include:
- Obtaining security over the debtor’s interest in a property
- Obtaining security over shares or other financial assets belonging to the debtor
- Obtaining an order over money owed to the debtor or money in a bank account belonging to him or her
- Taking possession of assets belong to the debtor and selling these at auction
Whether any of these methods of enforcement work will depend on the debtor’s situation. If so, there are different ways of obtaining them. Some require the debtor’s agreement and others are imposed by the court after a judgment has been obtained.
The advantage of these steps is that the property recovered will be for your benefit alone and not that of other creditors. Security over land is particularly valuable and it may give you the option of selling the property at a future date to maximise the recovery.
However, such steps will only work if the debtor has assets available to meet your debt and, even if that is the case, if other creditors are seeking to enforce their judgments at the same time, or the debtor applies for insolvency protection before the enforcement is complete, you may not recover your debt. In addition, there may not be very much information as to the debtor’s financial circumstances and that can make any other enforcement action a ‘shot in the dark’.
Taking legal advice
The cost of taking the wrong form of enforcement action can be considerable and it may also lead to a lost opportunity in recovering the debt. Taking legal advice at an early stage may be of assistance to you.
For more information proceed to The effect of bankruptcy on a debt