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CONTACTING AN ONTARIO LICENSED INSOLVENCY TRUSTEE: PREPARE TO GET THE BEST RESULTS FROM YOUR INITIAL CONSULTATION

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Licensed insolvency trustee

If you’ve found yourself grappling with personal debt, or your company is in a tight spot because of corporate debt, seeking the guidance of a licensed insolvency trustee is a smart choice. Trustees possess the expertise and resources to assist you in navigating your financial predicament and getting back on the right course.

Before engaging in a conversation with a licensed insolvency trustee, it’s crucial to adequately prepare yourself to make the most of your preliminary consultation. This Brandon’s Blog outlines the essential steps that need to be taken to ensure a fruitful discussion. By adhering to these recommendations, you can be confident that you will derive maximum benefit from your complimentary consultation and obtain the necessary advice to chart your path toward resolving your financial challenges.

Without any further delay, let’s explore the preparations required for your initial consultation with an Ontario Trustee.

Understanding the role of an Ontario licensed insolvency trustee

An Ontario licensed insolvency trustee is a crucial player when it comes to handling financial troubles. Their key function is to help individuals and businesses in navigating the insolvency landscape and find the most effective and feasible options. Trustees are highly educated and licensed specialists who have a deep understanding of the federal government’s Canadian bankruptcy and insolvency legislation and how to apply it in every situation.

When you are drowning in personal or business debt, a Trustee can be your guiding light. They will assess your financial scenario, assist you to recognize your rights and realistic options, and offer experienced advice tailored to your personal story. Whether it’s recommending a debt consolidation loan, outlining the consumer proposal process, strategizing on the financial restructuring of businesses with debt problems or assisting in a personal bankruptcy filing, Trustees can help you get through the one that is best for you, making certain that you make educated choices each step of the way.

It is very important to note that Trustees are objective debt professionals. They aim to discover a reasonable and fair resolution that takes into consideration both your needs and the legal realities that your creditors face. So, if you’re facing economic obstacles and require someone with competence to guide you through the maze, a Trustee is definitely the individual to rely on.trustee

When should you consult a Trustee?

Navigating financial difficulties can be a challenging and overwhelming experience. If you find yourself struggling with mounting debts and unsure about the best way forward, it may be time to consult a licensed insolvency trustee. We specialize in helping individuals and businesses regain control of their financial situations. But when exactly should you seek our expertise? Here are some key scenarios where consulting a Trustee can be beneficial:

  1. Increasing debt burden: If your debts are continuously piling up, and you find it difficult to make timely payments, it’s a red flag that you should consult a licensed insolvency trustee. They can assess your financial situation, evaluate your debts, and provide guidance on the available options to alleviate your debt burden.
  2. The threat of legal action: When creditors are making their collection calls and are threatening legal action or have already initiated collection action, it’s crucial to seek professional assistance. A licensed insolvency trustee can help you understand your rights, explore potential solutions, and negotiate with creditors on your behalf.
  3. Loss of income or job: Sudden job loss or a significant reduction in income can have a severe impact on your financial stability. If you’re facing difficulties meeting your financial obligations due to these circumstances, consulting a licensed insolvency trustee can help you navigate through the challenges and explore strategies for recovery.
  4. Inability to repay debts: In the event that you have arrived at the point where the repayment of debts is no longer feasible, despite having explored alternative methods such as debt consolidation or negotiation, it is time to enlist the services of a Trustee who will offer guidance in navigating the insolvency process.
  5. Mounting stress and anxiety: The mounting stress and anxiety that often accompanies financial difficulties can have a debilitating impact on one’s mental and emotional well-being. Should you find yourself feeling overwhelmed, consistently stressed, or experiencing anxiety as a result of your financial situation, don’t hesitate to seek the guidance of a licensed insolvency trustee.

Remember, consulting a licensed insolvency trustee is not limited to these scenarios alone. If you have any concerns about your financial situation or feel uncertain about the best course of action, it’s always wise to seek professional advice. These experts can evaluate your unique circumstances and provide tailored solutions to help you regain control of your finances and pave the way toward a brighter financial future.

Importance of preparation for an initial consultation with the Trustee

Preparation is key when it comes to your initial consultation with an Ontario-licensed insolvency trustee. This is the moment where you get to meet and chat about your financial situation, explore possible solutions, and set yourself on the path to financial recovery. So, why is preparation so important? Well, here’s why:

First off, being prepared helps you make the most of your time with the Trustee. This consultation is a limited window, no longer than 1 hour, so having your ducks in a row and providing accurate information upfront allows the Trustee to understand your situation quickly and give you tailored advice. Time is precious and there is none to waste!

In order to optimize the benefits of your consultation with a Trustee, it is crucial to first correctly prepare for it. By devoting some time to think about how you got to your current financially challenged state, to consider your financial goals and concerns, you can establish a definitive plan of action. This will facilitate a focused and productive dialogue during the consultation, ensuring that the Trustee can address your unique needs with precision and efficiency.

It behooves you to also undertake thorough data collection and organization. This entails meticulously gathering and cataloging all pertinent information related to your financial history, liabilities, assets, income, and expenditures. By undertaking this preparatory work, you will be equipped with a comprehensive and precise understanding of your financial landscape. This will enable the Trustee to offer optimal guidance and recommendations that are tailored to your specific financial needs.

It is crucial to have a comprehensive understanding of the available debt relief options in Canada. Conducting thorough research beforehand allows you to enter the consultation with a well-informed perspective, equipped to ask pertinent questions, evaluate potential risks and benefits, and make prudent decisions regarding your financial future. This sense of empowerment is invaluable.

It is equally essential to consider the Trustee’s credentials and suitability. As a discerning individual, you must assess the Trustee’s expertise, approach, and values to ensure a fruitful partnership. Investing time and effort to gather recommendations, read reviews, and gauge compatibility will guarantee that you have selected a competent professional with whom you can establish an excellent working rapport.

Last but not least, when you come prepared, you exude confidence and engagement. Your thorough preparation gives you a boost of self-assurance, knowing that you’ve done your homework. This means you can actively participate in the consultation, ask relevant questions, and make the most of the Trustee’s guidance. It’s the difference between being in the financial game or being mired and lost!

To sum it all up, preparation is the secret sauce for a successful initial consultation with an Ontario licensed insolvency trustee. It helps you make the most of your time, gain clarity, gather necessary info, understand your options, evaluate the Trustee, and approach the discussion with confidence and engagement. So, put in the effort, get prepared, and get ready to pave your way to financial recovery and stability.trustee

The benefits of speaking with an Ontario Licensed Insolvency Trustee before you make any financial decisions

The benefits of speaking with an Ontario licensed insolvency trustee before you make any financial decisions.

Engaging in dialogue with an Ontario Trustee prior to making any financial determinations can yield considerable advantages. An Insolvency Trustee holds the expertise to both understand and dissect your financial problems and circumstances and acquaint you with the array of choices at your disposal. Trustees possess the proficiency to appraise your financial state and counsel you on the optimal resolution for your particular predicament. The Trustee, like me, may also hold the designation of Chartered Insolvency and Restructuring Professional.

If you find yourself facing economic challenges, it could be a good idea to get in touch with an Ontario Trustee. These professionals are skilled in offering counsel and guidance to individuals and companies grappling with monetary issues. They hold a license and are regulated by the Office of the Superintendent of Bankruptcy Canada. By seeking assistance from a Trustee, you can obtain the support necessary to navigate the intricacies of financial predicaments. Through their aid, you will acquire valuable insights that can influence your decision-making and guide you toward a more prosperous financial future.

Financial assessment

One of the primary benefits of consulting with an Ontario Trustee is receiving a comprehensive financial assessment. LITs possess the expertise to review your financial situation objectively, taking into account your assets, debts, income, and expenses. This assessment allows them to gain a holistic understanding of your financial standing and identify potential solutions tailored to your specific needs.

Debt relief options explained

In times of financial adversity, it is imperative to have an in-depth understanding of the various debt relief options at your disposal. By consulting with a qualified Ontario Trustee, you can gain comprehensive insights into potential solutions, including debt consolidation, consumer proposals, and bankruptcy.

Trustees will inform you of the benefits and drawbacks of each alternative, offering a complete assessment of the potential outcomes and consequences associated with any given choice. Rest assured that with their guidance, you can make an informed decision that will alleviate your financial distress and pave the way toward a brighter fiscal future.

Tailored solutions for your unique situation

Every individual’s financial situation is unique, and what works for one person may not work for another. By consulting with a Trustee, you gain access to personalized solutions that address your specific circumstances. LITs take the time to understand your financial goals, evaluate your resources, and design a strategy that maximizes your chances of achieving a stable financial future.

When you find yourself struggling with overwhelming debt, it’s common for creditors to take legal action against you. Seeking assistance from a Trustee can help you navigate these legal challenges. LITs can provide protection from creditors who have started legal proceedings. An insolvency process will invoke a stay of proceedings, that puts a temporary halt on creditor actions, giving you breathing room to implement one of your potential debt relief solutions.

Expert negotiations with creditors

Engaging with creditors and negotiating debt repayment terms can be a daunting and stressful process. However, an Ontario Licensed Insolvency Trustee takes that job and all the stress that comes with it off your shoulders, by being the one negotiating with your creditors. Their expertise and knowledge of the legal and financial framework ensure that you receive fair treatment and that your rights are protected throughout the process.

Financial education and future planning

Speaking with an Ontario Trustee offers more than just immediate debt relief. LITs can provide financial education and guidance to help you develop healthy financial habits and plan for a more secure future. They can offer advice on budgeting, saving, and rebuilding credit, equipping you with the necessary tools to achieve long-term financial stability. Two mandatory financial counselling sessions are part of the services to individuals included automatically in any consumer insolvency process.

The key questions to ask to gain a better understanding of the process and your options

In order to optimize the outcome of a discussion with a Trustee regarding your financial situation, it is imperative to approach the exchange with a clear and organized mindset. Engaging in dialogue with a trustee can furnish indispensable observations and aid in discerning informed resolutions for your fiscal outlook. The following segment offers advantageous suggestions to anticipate the tenor of the conversation and how best to equip yourself for it, guaranteeing that you derive the utmost advantage from your interaction with the trustee.

1. Gather Relevant Financial Documents

It is crucial to gather all pertinent financial documents ahead of time. This includes bank statements, tax returns, credit card statements, loan agreements, and any other records that pertain to your financial situation. By providing the Trustee with a full picture of your financial standing, they can deliver practical advice and personalized solutions that are tailored to your unique circumstances. Don’t leave anything behind – come prepared with all the necessary information.

Before meeting with a Trustee, gather all relevant financial documents, such as bank statements, tax returns, credit card statements, loan agreements, and any other records pertaining to your financial situation. These documents will provide the Trustee with a comprehensive understanding of your financial standing, enabling them to offer accurate advice and tailored solutions.

2. Be Transparent and Honest

It’s crucial to be open, transparent, and honest about your financial circumstances during the conversation with the Trustee. A professional code of ethics and confidentiality binds them, so you can feel confident in sharing sensitive information. Providing a complete and accurate picture of your financial situation will enable them to offer the best possible guidance and solutions.

3. Prepare a List of Questions and Concerns

To make the most of your conversation with the Trustee, prepare a list of questions and concerns in advance. Consider what specific areas of your financial situation you’d like to address or any uncertainties you may have. Having a well-prepared list will ensure that you cover all relevant topics and get the information you need during the discussion.

4. Understand the Available Options

Educate yourself about the various debt relief options available to you before the conversation with the Trustee. Research bankruptcy laws, debt consolidation, consumer proposals, and other relevant solutions. This background knowledge will allow you to have a more meaningful discussion with the Trustee, as you can ask targeted questions and better understand their recommendations.

5. Take Notes During the Conversation

During your conversation with the Trustee, it’s helpful to take notes. Jot down key points, advice, and recommendations provided by the Trustee. These notes will serve as a reference later on and help you recall important details when making decisions about your financial situation.

6. Ask About Potential Consequences and Long-Term Implications

Inquire about the potential consequences and long-term implications of different debt relief options. Understanding the pros and cons, as well as any legal or financial ramifications, will enable you to make an informed decision. The Trustee can provide insights into how each option may impact your credit score, assets, and future financial stability.

7. Discuss a Realistic Financial Plan

Collaborate closely with the Trustee to formulate a pragmatic and attainable fiscal blueprint. This comprehensive scheme must harmonize with your aspirations while considering your revenue, expenditures, and liabilities. Leveraging the Trustee’s proficiency, forge a viable budget and delve into tactics that can curtail your debt burden and enhance your long-term financial standing.trustee

How to follow up after the consultation with the licensed insolvency Trustee to ensure all your concerns are addressed before making any decisions

After finishing your initial consultation with a licensed insolvency trustee, there will always be some lingering questions or concerns. You should always follow up with the Trustee to clear up any confusion. It is definitely a lot of information to digest in one consultation. This will empower you to better understand the process, your available options, and any further actions you may be required to take.

Be sure to take notes of all crucial details discussed during the session and jot down any additional questions that come to mind. You may contact the Trustee via phone or email to seek clarification on any doubts or queries before making any critical financial decisions. By engaging in a follow-up conversation with your Trustee, you can ensure that you are fully informed and confident in your financial decisions.

Common things that people want to know from the Trustee during the initial consultation

What are my debt solution options? A Trustee provides a wide range of options for debt relief that are tailor-made to suit your specific needs. For individuals, this could involve presenting a consumer proposal or a Division I restructuring proposal to unsecured creditors, allowing you to negotiate a repayment plan based on your financial capacity. For corporations, if timely intervention is possible, it may entail financial restructuring. Your Trustee will carefully consider the pros and cons of each option and recommend the most suitable course of action based on your unique circumstances. In certain cases, bankruptcy may be the only viable solution.

How will this affect my credit score? Many individuals express concerns about potential negative impacts on their credit score when meeting with a Trustee. However, it is important to note that the act of simply meeting with a Trustee does not have any direct impact on your credit score. It is the chosen insolvency process itself that can have an effect on a person’s credit rating.

What are the costs involved? When seeking the assistance of a Trustee, it becomes crucial to take into account the related expenses. The charges imposed by a Trustee vary based on the chosen insolvency procedure and are contingent upon the complexity of one’s financial predicament and the extent of services provided.

However, it is of utmost importance to acknowledge that these expenses are subjected to regulation by the Office of the Superintendent of Bankruptcy Canada and necessitate court approval in instances of bankruptcies and consumer proposals. Throughout the primary consultation, the Trustee will furnish an open and all-encompassing breakdown of all charges, guaranteeing absolute transparency and lucidity during the course of action.

Is this consultation confidential? Yes, it is a confidential consultation. However, keep in mind that we are not lawyers.

Trustee conclusion

To wrap things up, it’s of utmost importance to have thorough preparation in place to ensure a highly productive initial consultation with a Trustee. I’ve delved into various pivotal measures you can adopt to optimize the utilization of your time during the consultation and obtain relevant guidance pertaining to your debt-related predicaments.

Bear in mind, forthrightness and transparency regarding your financial circumstances are vital, enabling the Trustee to furnish tailor-made solutions that align with your unique requirements, whether it is a personal or corporate matter. Lastly, seize the opportunity presented by this cost-free consultation to pose any inquiries or voice any apprehensions that may be lingering within. The Trustee is dedicated to aiding you in navigating through your financial hardships and ultimately steering you toward a triumphant financial destiny.

I hope you enjoyed this Trustee Brandon’s Blog. Managing your personal or business financial affairs in today’s ever-challenging and changing business landscape is no small feat, but with the right plan in place, it’s possible to stay or get back on track.

Revenue and cash flow shortages are critical issues facing people, entrepreneurs and their companies and businesses. Are you now worried about just how you or your business are going to survive? Are you worried about what your fiduciary obligations are and not sure if the decisions you are about to make are the correct ones to avoid personal liability? Those concerns are obviously on your mind. Coming out of the pandemic, we are also now worried about the economic effects of inflation and a potential recession.

The Ira Smith Team understands these concerns. More significantly, we know the requirements of the business owner or the individual that has way too much financial debt. You are trying to manage these difficult financial problems and you are understandably anxious.

It is not your fault you can’t fix this problem on your own. The pandemic has thrown everyone a curveball. We have not been trained to deal with this. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Team uses innovative and cutting-edge methodologies, to adeptly navigate you through the intricacies of your financial challenges, ensuring a resolution to your debt-related predicaments without resorting to the rigours of the bankruptcy process. We can get you debt relief now!

We have helped many entrepreneurs and their insolvent companies who thought that consulting with a Trustee and receiver meant their company would go bankrupt. On the contrary. We helped turn their companies around through financial restructuring.

We look at your whole circumstance and design a strategy that is as distinct as you are. We take the load off of your shoulders as part of the debt settlement strategy we will draft just for you.

The Ira Smith Trustee & Receiver Inc. team understands that people facing money problems require a lifeline. That is why we can establish a restructuring procedure for you and end the discomfort you feel.

Call us now for a no-cost consultation. We will listen to the unique issues facing you and provide you with practical and actionable ideas you can implement right away to end the pain points in your life, Starting Over, Starting Now.trustee

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INSOLVENCY TRUSTEE: TURNS OUT CERTAIN ACTIONS AGAINST THE TRUSTEE CANNOT BE UNLEASHED WITHOUT COURT PERMISSION

What does an insolvency trustee do?

In simple terms, the only professional who can help you with a government-regulated insolvency proceeding that may allow you to be discharged from your debt is an insolvency trustee. This may be the best solution for individuals with significant financial difficulties.

An insolvency trustee is responsible for carrying out the administration of an insolvency file in accordance with the requirements of the Bankruptcy and Insolvency Act (Canada) (BIA). The insolvency trustee is responsible for ensuring that both creditors and the public interest are protected during the debt relief options of bankruptcy, consumer proposal, or Division I proposal process. This includes ensuring that assets are properly managed, sold and the cash distributed and that the bankruptcy or insolvency process is carried out in a fair and orderly manner.

A licensed insolvency trustee is federally regulated

The Office of the Superintendent of Bankruptcy (OSB) licenses and provides ongoing oversight for insolvency trustees, who must adhere to federal standards of practice, including the Code of Ethics for Trustees.

If you have a problem with a licensed insolvency trustee (formerly called a bankruptcy trustee) that you can’t solve, you can file a complaint with the OSB. Your complaint will be reviewed and assessed. You may even want to consider taking legal action against the insolvency trustee if your situation is extreme.

Section 215 of the BIA states:

“Except by leave of the court, no action lies against the Superintendent, an official receiver, an interim receiver or a trustee with respect to any report made under, or any action taken pursuant to, this Act.”

The BIA recognizes that a party may have a legitimate grievance against an insolvency trustee for something that was done or not done during a bankruptcy administration. The BIA tries to balance the need to protect legitimate claims against the Trustee with the need to prevent parties from using the threat of litigation to gain leverage.

insolvency trustee

Who is a person of insolvency?

The above is an introduction to today’s insolvency trustee Brandon’s Blog. In June of last year, I wrote about this bankrupt person in the blog TRUSTEE IN BANKRUPTCY: CERTAIN ACTIONS AGAINST TRUSTEE CAN BE UNLEASHED WITHOUT FIRST REQUIRING COURT PERMISSION. That Brandon Blog dealt with a decision of the Ontario Superior Court of Justice.

The person of this insolvency was a serial bankrupt, filing bankruptcy four times in 12 years: 2004, 2006, 2011, and 2016. Each time he used the same insolvency trustee. He operated a sole proprietorship painting business. So technically, each time he went bankrupt, a new sole proprietorship began.

The plaintiff alleges that the licensed insolvency trustee (LIT) was negligent, committed fraud, breached their fiduciary duty, and was unjustly enriched, starting with the confidential consultation and throughout each personal bankruptcy administration. The bankrupt discovered during his 4th bankruptcy that his former spouse had misappropriated substantial sums from his business between 2003 and 2018. Ultimately, he determined that the amount of the misappropriations was approximately $206,000.

The bankrupt’s fourth bankruptcy was annulled by filing a consumer proposal with a different insolvency trustee that was accepted by his creditors. He and his current spouse then commenced an action not against the corporate licensed insolvency trustee of record who handled all four bankruptcies, but rather against the person, who is a licensed insolvency trustee, who carried out the individual bankruptcy processes.

The bankrupt person and his new spouse are seeking relief against the individual as though he were the Trustee of record. The central allegation is that he, as the “Licensed Insolvency Trustee” providing bankruptcy services for each of the bankruptcies, ought to have detected the misappropriations and, once told about them, he should have sued the former spouse. So they are blaming the Trustee for the bankrupt businesses with debt problems!

The plaintiff went to court to determine whether they needed the court’s permission to proceed with their case under section 215 of the BIA against the bankrupt person’s insolvency trustee. The plaintiff believed they did not need permission, but if they did, they should be granted it. The defendant Trustee argued that permission was needed and should not be granted. The judge ruled that the plaintiff does not need to get permission from the court to start this legal process.

Insolvency trustee appeals lower court decision

On July 13, 2022, the Court of Appeal for Ontario released its decision of the three appellate judge panel on the insolvency trustee‘s appeal of the lower court decision. The OSB obtained intervener status and was represented by legal counsel on the appeal. The OSB supported the insolvency trustee‘s position.

The motion judge, sitting in the bankruptcy court, determined that permission was not required under s. 215 to commence the legal action. However, she expressly did not determine whether, if permission were required, it should be granted. Therefore, she did not address whether the person’s status as an undischarged bankrupt would impact the decision.

The motion judge found that the litigation did not require permission under section 215 for two reasons:

  1. she believed that actions against trustees in their personal capacity do not require permission; and
  2. she found that actions that allege omissions do not require such permission.insolvency trustee

Is the appeal as of right, and if not, should leave to appeal be granted?

The Court of Appeal for Ontario first had to decide if the licensed insolvency trustee has an automatic right to appeal the lower court decision and if not, should leave to appeal be granted?

The appellate court stated that it would be willing to grant leave to appeal because the proposed appeal, falls within the proper scope of section 215 of the BIA for 3 reasons:

  1. This case raises an important issue – the circumstances in which an insolvency trustee can be sued without leave of the court – that is of general importance to the practice in bankruptcy/insolvency matters.
  2. The case is prima facie meritorious.
  3. The appeal would not unduly hinder the progress of the person’s bankruptcy proceedings.

The Court of Appeal for Ontario, therefore, gave the Trustee the opportunity to appeal the lower court’s decision.

Insolvency trustees and bankrupts are obliged to work with the court

The lower court found that the action did not require leave under section 215 of the BIA. This is because the judge decided it was against the Trustee in a personal capacity. The Trustee was now appealing this decision. The Trustee argued that section 215 of the BIA applies when a director, officer, or employee of the corporate trustee is sued for the Trustee’s conduct, just as it would if the corporate trustee were sued. The appellate court agreed, relying on a decision from the Supreme Court of British Columbia.

The purpose of BIA section 215 is to ensure that the bankruptcy process is not obstructed by the Trustee being hindered by actual or threatened vexatious lawsuits in connection with the administration of the bankruptcy.

In Canada, most licensed insolvency trustees are corporations. The BIA imposes numerous duties on them. A corporate entity can only discharge its duties through its directors, officers and employees. If the scope of section 215 were limited to protecting only the corporate trustee, then Trustees would be unable to properly carry out their duties.

The Court of Appeal for Ontario in this cased determined that this type of distinction between the corporate trustee and its staff would contravene the clearly expressed will of Parliament as evidenced by the statutory language. To allow such would be to subvert the fundamental purpose of section 215.

The key question in determining whether s. 215 applies is whether the connection contemplated by the section is present. This question is answered by examining the relationship between the alleged wrongdoing complained of in the Action and the role of a trustee. The appellate court looked at the proposed action by the bankrupt person and his current spouse and saw that there was the required connection. Therefore the Court of Appeal for Ontario agreed with the position of the Trustee and the intervener in finding that section 215 does apply in this case.

The other reason the motion judge came to her conclusion was that the action also alleged omissions. The lower court judge determined that a claim for omissions is not covered by section 215. The appellants and the intervener argued that action may fall outside of section 215 only when the crux of the action is the failure to do something expressly and specifically required by the BIA.

The common law claims here arise from alleged failures to act, rather than from failures to do something specifically and expressly required by the BIA. The Court of Appeal believes that section 215 applies to this action, and the motion judge was incorrect in concluding otherwise.

The Court of Appeal for Ontario sent this case back down to the bankruptcy court to decide whether the former bankrupt and his current wife should be allowed to sue the Trustee.insolvency trustee

What you need to know about LITs

Neither myself nor my firm has any kind of involvement in this issue. I have not read any of the pleadings in this action. I wish to be clear with you and let you know, based only on the information available to the public from the court decisions, what I would certainly have done in carrying out the personal bankruptcies if I was the Trustee.

If you’re experiencing financial difficulties and are considering insolvency, the first step is to consult with an insolvency trustee. During this consultation, the Trustee will collect information about your financial affairs and make recommendations about the best course of action for you.

The individual conducting the assessment must inquire about the debtor’s property and financial affairs. They shall prepare a statement of the debtor’s financial affairs, including their assets and liabilities, based on the information obtained from the debtor.

It is also necessary to get a clear and up-to-date monthly income and expenditure statement, which details all income (gross and net), all expenditures (including special needs, alimony, support or maintenance payments, and medical and prescription expenses). The debtor must also be prompted to provide information on all transfers under value they may have made concerning their assets.

There are a few options available to debtors who are struggling financially and looking to improve their financial situation. These debt relief programs include:

  • non-legislative debt solutions such as debt consolidation or financial counselling sessions performed by credit counselling agencies (insolvency trustees must provide two mandatory credit counselling sessions with the debtor as part of either a proposal or bankruptcy);
  • consumer proposals under Division II of the BIA;
  • a proposal under Division I of the BIA for those that do not qualify for a consumer proposal; and
  • as a last resort, bankruptcy.

What are the duties of an insolvency trustee?

Each debt management plan option has different rights and responsibilities for both the debtor and the creditors. It’s important for the debtor to understand all of the available debt management solutions. I would discuss each one with the debtor and help them choose the one that would be the best for their individual situation. In this particular case, I would want to drill down with the debtor to have him identify the causes of their insolvency. This inevitably would lead to a discussion with this debtor as to why his business seems to be losing so much money every year.

In order to fulfill my duties, I would want to drill down with the debtor to have him identify the causes of their insolvency. This inevitably would lead to a discussion with this debtor as to why his business seems to be losing so much money every year. If the debtor had been able to afford the monthly payments for a consumer proposal to annul his fourth bankruptcy using a different Trustee, could he have avoided filing for bankruptcy a fourth time altogether? I don’t have enough information to know the answer to that question.

I am required to review the bankrupt’s banking transactions for the 12 months prior to the date of bankruptcy as a Trustee. I am looking for any large or unusual transactions, especially large amounts of cash being paid to relatives or friends. This is important in bankruptcy proceedings because the Trustee has a duty to keep creditors updated on any legal proceedings, reviewable transactions, and preference payments. The Trustee needs to consider taking action against anyone to recover funds or, at the very least, opposing the bankrupt’s absolute discharge.

This review is only possible if the bankrupt has accurate records. In this case, if the bankrupt had the records and I reviewed them, I would have either found or not found any unusual transactions. If I did the review, it may have uncovered the alleged fraud.

The former bankrupt claims that the insolvency trustee should have sued the former wife for taking cash out of his business fraudulently. As a Trustee, I must first determine whether there are sufficient funds available to do so. If there are funds available, I must then carefully consider whether pursuing legal action is in the best interests of the estate.

This also assumes that the Trustee’s lawyer has given the opinion that this is a strong case to pursue. The Trustee must be very cautious because if the case is lost, the Trustee will be responsible for the other party’s legal costs awarded by the court. If the bankruptcy estate has insufficient funds, the Trustee will be held personally responsible. This is not a desirable outcome.

If I had found evidence of the alleged fraud and I either did not have sufficient funds to launch a legal action or I did not think it was a wise use of estate funds, there is one more thing I could do and would have done.

I would write to all known creditors and the bankrupt to advise that there is a potential asset in the form of litigation against the bankrupt’s former wife. However, the Trustee does not have sufficient assets to begin the litigation and as a result, I must refuse to pursue this asset. I would also explain section 38 of the BIA. This section allows creditors to obtain court approval to pursue legal action in their own name. If successful, they are able to keep their costs and the full amount of their claim from the recovery. This could be a great option for creditors who wish to fund the legal action.

If the facts that come out align with my explanation of the steps I would have taken, then my prediction is that the former bankrupt and his current wife will not be successful in persuading the court to allow them to continue their action against the Trustee. I will keep watch.insolvency trustee

The insolvency trustee is here to help you with your problem debt

I understand that you’re struggling with debt and I’m here to help. I am an insolvency trustee and I want to help you find a way to shed your debt, eliminate your challenging debt issues, improve your financial future and get all that stress and worry out of your life, Starting Over Starting Now.

I hope you found this insolvency trustee Brandon’s Blog interesting. Among the many problems that can arise from having too much debt, you may also find yourself in a situation where bankruptcy seems like a realistic option.

If you are dealing with substantial debt challenges and are concerned that bankruptcy may be your only option, call me. I can provide you with debt help.

You are not to blame for your current situation. You have only been taught the old ways of dealing with financial issues, which are no longer effective.

We’re passionate about permanently solving your financial problems with you and getting you or your company out of debt. We offer innovative services and alternatives, and we’ll work with you to develop a personalized preparation for becoming debt-free which does not include bankruptcy. We are committed to helping everyone obtain the relief and financial wellbeing they need and are worthy of.

You are under a lot of pressure. We understand how uncomfortable you are. We will assess your entire situation and develop a new, custom approach that is tailored to you and your specific financial and emotional problems. We will take the burden off of your shoulders and clear away the dark cloud hanging over you. We will design a debt settlement strategy for you. We know that we can help you now.

We realize that people and businesses in financial difficulty need practical advice and a workable solution in an easy-to-understand financial plan. The Ira Smith Team knows that not everyone has to file for bankruptcy in Canada. Most of our clients never do, as we are familiar with alternatives to bankruptcy. We assist many people in finding the relief they need.

Call or email us. We can tailor a new debt restructuring procedure specifically for you, based on your unique economic situation and needs. If any of this sounds familiar to you and you’re serious about finding a solution, let us know.

Call us now for a no-cost initial consultation.insolvency trustee

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LICENSED INSOLVENCY TRUSTEE FEES: WHAT UNDENIABLE EVIDENCE IS NEEDED FOR COURT APPROVAL OF INSOLVENCY TRUSTEE FEES?

Licensed insolvency trustee fees: How is a licensed insolvency trustee paid?

Are your debts or your company’s debts and financial situation causing you so much stress that you are considering speaking to a licensed insolvency trustee (formerly called a bankruptcy trustee or trustees in bankruptcy), but you are worried about the licensed insolvency trustee fees? Are you concerned about the professional fees to be paid because you think that businesses with debt problems already cannot afford to hire professionals? Your concerns are valid and relevant but you should not let that stop you from your initial inquiry. An insolvency trustee will always provide you with a no-cost initial consultation, discuss realistic options and explain the cost of each option to you.

Licensed insolvency trustee fees are set by bankruptcy laws and rules contained in the Bankruptcy and Insolvency Act (Canada) (BIA). They are reviewed by the Office of the Superintendent of Bankruptcy and must be approved by the bankruptcy court. Fees are either drawn from the funds accumulated in the insolvency file from the sale of assets in the receivership or bankruptcy administration or the monthly payment funding of the restructuring proposal. If there are insufficient assets in the insolvency file, then the insolvency trustee gets its fee from a third-party retainer.

In this Brandon’s Blog, I describe how licensed insolvency trustee fees are calculated. Then, I review a recent Ontario court decision to show what kind of evidence the Trustee needs to provide the court in order for its fees to be approved.

Licensed insolvency trustee fees: Disbursements included in a streamlined personal insolvency process

Licensed insolvency trustees offer a range of services for both individuals and businesses. For individuals, there are two streamlined insolvency processes:

  • summary administration personal bankruptcy; and
  • consumer proposals.

    licensed insolvency trustee fees
    licensed insolvency trustee fees

Licensed insolvency trustee fees in a summary administration personal bankruptcy

The summary administration personal bankruptcy process applies when the assets of the bankrupt person to be sold are expected to sell for $15,000 or less. Licensed insolvency trustee fees for a summary administration personal bankruptcy are set by a formula called a tariff.

In a summary administration bankruptcy, the fees that insolvency trustees are entitled to are calculated as follows:

  • 100 percent on the first $975 or less of receipts;
  • 35 percent on the portion of the receipts exceeding $975 but not exceeding $2,000;
  • 50% of receipts exceeding $2,000;
  • for counselling fees of $75 per session, totalling $150; and
  • an allowance for administrative disbursements of $100.

The reason the formula refers to receipts (of cash) rather than net proceeds from asset sales is that, in any personal bankruptcy, there are two types of cash receipts: 1. from the sale of assets; and 2. surplus income payments made by the bankrupt person, if any.

Licensed insolvency trustee fees: How much will it cost me to file a consumer proposal?

The calculation of the amount you need to offer your creditors in your consumer proposal has no relation to what the licensed insolvency trustee fees will be. Licensed insolvency trustee fees for a licensed trustee acting as the Administrator in the consumer proposal process is also governed by a tariff. It is calculated as follows:

  • $750 on the filing of the proposal with the official receiver;
  • $750 on the approval or deemed approval by the court;
  • 20% of moneys distributed payable on distribution; and
  • counselling fee of $75 for each counselling session for a total of $150.

In a consumer proposal, administrative disbursements are paid out of the above fee calculation.

In both summary administrations and consumer proposals where the licensed insolvency trustee fees are only the tariff, there is no need for court approval.

licensed insolvency trustee fees
licensed insolvency trustee fees

What factors influence licensed insolvency trustee fees in other administrations?

There are no streamlined provisions for any corporate insolvency administration. In addition to administering summary administration bankruptcies and consumer proposals, licensed insolvency trustees also can provide the following services:

  • business review of a company to identify its solvency and future prospects so that financial advice can be given
  • ordinary administration personal bankruptcy
  • commercial bankruptcy
  • personal Division I restructuring proposal to creditors (for consumers who cannot qualify for a consumer proposal)
  • corporate Division I restructuring proposal
  • private corporate receivership
  • court-appointed corporate receivership
  • winding-up corporate liquidation, either voluntary or court-supervised
  • corporate restructuring under the Companies’ Creditors Arrangement Act

In all of the above government-regulated insolvency proceedings/insolvency procedures, there are only two factors that influence the licensed insolvency trustee fees. They are:

  1. Hours spent by the level of staff working.
  2. The professional hourly rate of the staff.

Licensed insolvency trustee fees: How does an insolvency practitioner receive compensation?

In all of the non-streamlined insolvency processes, I just described, how the licensed trustee gets the fees it is charging requires approval. In private appointments, the licensed trustee needs the approval of the client. In a court appointment or administration for bankruptcy services or any other mandate under the BIA, the licensed trustee needs court approval.

What evidence do licensed insolvency trustees need to provide to prove the time that was spent doing the work? The documentation expected of a licensed trustee is the same that is expected from an insolvency lawyer or any other kind of lawyer. What is expected are detailed time dockets, so that everyone can see who spent what time, on what day on what activity.

But what if proper dockets are not kept? Well, that is exactly what the court case I want to describe to you is all about.

licensed insolvency trustee fees
licensed insolvency trustee fees

Licensed insolvency trustee fees: How do practitioners of insolvency get compensated – it takes a Final Statement of Receipts and Disbursements

I am writing this Brandon’s Blog to be informative, not to embarrass anyone. So I will not be providing the case reference of the case I am now going to describe. This is actually the second such case in Ontario that I am aware of in the last 12 months.

The case deals with a bankruptcy trustee who submitted its final statement of receipts and disbursements (SRD) to the court for approval. Contained in this final statement is amongst other things, the line item for the fee and disbursements the Trustee is seeking court approval for. The court expects to see a sworn affidavit from someone on the insolvency trustee’s staff who has knowledge of the time spent and the fee charged outlining what was done and why it was necessary. The court also expects to see detailed time dockets.

In this case, and the very similar one that came before it, the insolvency trustee’s material did not include detailed time dockets. Both Trustees applied for taxation of their SRD in an individual debtor’s Division I Proposal. In both cases, the Office of the Superintendent of Bankruptcy issued clean letters of comment. The primary issue raised on this taxation is whether the insolvency trustee’s fees are to be approved. In the ordinary course, the debtor and the creditors have not been given notice of the taxation but it would appear that there is unlikely to be any objection.

The taxation raises the question of how the Trustee is supposed to establish its entitlement to fees when there is no time dockets kept or otherwise available to support the trustee’s claim. In this case (and the one before it), the Trustee is relying solely on the terms of the proposal. The proposal contains the methodology for calculating the fees to be taken by the Trustee in administering the proposal. The Trustee is relying on the fact that a Proposal is a contract between the debtor and its creditors, the court has already approved the Proposal and the Proposal includes the Trustee’s remuneration.

Licensed insolvency trustee fees: Bankruptcy trustees – why not keep accurate time records?

The Trustee requested fees (plus HST) based on the formula set out in the debtor’s proposal. While the Trustee provided an affidavit in support of its taxation, the Trustee did not provide any evidence of actual time spent at each staff level. The taxation came before the Associate Justice on September 1, 2021. She adjourned the taxation and requested time dockets.

The Trustee filed a report in response to the September 1, 2021 endorsement and request for time dockets, supporting the taxation and approval of the fees claimed, but no time dockets were included. In its report, the Trustee noted that it did not keep formal, detailed time records, as the terms of the Trustee’s fees and expenses are set forth in the Proposal as a “fixed fee” formula. This fee formula was accepted by creditors and approved by the Court. Therefore, the Trustee is relying upon that in not keeping time dockets.

The Trustee advised that its rationale for the development of a fixed fee formula to be charged by the Trustee, and for its decision to eliminate time docketing in such Division I proposals containing a formula for fixing a fee, were as follows:

  1. The fixed fee formula was designed by the Trustee to provide more certainty about the costs of administration for the Division I proposal. This formula also takes into account contingencies such as the time needed to negotiate the terms of the proposal and to verify the debtor’s financial information.
  2. The fixed fee formula was designed to make billing and accounting more efficient by eliminating the need to track chargeable time.
  3. The fixed fee formula was based on the consumer proposal tariff, to a certain extent.
  4. The fixed fee formula’s structure helped the Trustee keep initial costs low, so creditors could start getting dividends from the debtor’s monthly payments sooner.
  5. The fixed fee formula was designed to minimize unexpected increases in costs of administration and a resulting decrease in dividends.
  6. Not once has a creditor balked at the Trustee’s fixed fee.
  7. The court approved the proposal with the fixed fee formula, so the Trustee did not keep time dockets.
  8. There are many proposals whose administration is underway or completed that the Trustee has relied upon the fixed fee formula, and therefore has not maintained time dockets.
  9. The trustee’s fees, as claimed under the fixed fee formula, have not been objected to by the Office of the Superintendent of Bankruptcy Canada.

    licensed insolvency trustee fees
    licensed insolvency trustee fees

Licensed insolvency trustee fees: The court’s analysis and decision

The BIA provides for the determination of a Trustee’s remuneration in section 39. The Associate Justice said that s. 39(5) of the BIA provides the jurisdiction to increase or reduce the remuneration claimed by a Trustee. Further, the court was not a “rubber stamp” obliged to approve the fees claimed by the Trustee merely because they were in the Proposal. The court noted that it is common for Trustees to request remuneration based on the time spent and hourly rates charged. The burden is on the Trustee to convince the court that the amount claimed for remuneration is warranted.

The Associate Justice listed the following principles that must be considered when it comes to taxation:

  • Trustees should be given proper compensation for their services.
  • Prevent unjustifiable payments for Trustee fees that harm the insolvent estate and its unsecured creditors.
  • The efficient and conscientious administration of an estate for the benefit of creditors and, to the extent that the public is concerned, in the interests of the proper carrying-out of the objectives of the BIA, should be encouraged.

This Associate Justice also dealt with the previous case I mentioned above, which involved the taxation of a statement of receipts and disbursements in a Division I proposal where no time dockets were kept. In that case, she held that the lack of time dockets was not fatal to the approval of fees. She said the court is in a difficult position when there is no corroborative evidence as to the time and effort spent in the administration of the proposal.

So due to the lack of evidence justifying the time spent by the various staff members of the Trustee firm at their normal hourly rates, the Associate Justice was forced to look at the entirety of the Trustee’s administration. She found issues with it and therefore concluded that the Trustee was not entitled to the full fee being requested, based on the formula contained in the Division I Proposal. The Associate Justice determined, with the benefit of hindsight as to how the Division I Proposal turned out, that the debtor could have filed a consumer proposal and the creditors would have then been better off with a higher dividend distribution.

The Associate Justice ruled that, in this case, fees and disbursements will be set on a consumer proposal tariff basis. The proposal fund totalled $31,500. Using the formula for a consumer proposal, the Trustee was therefore entitled to fee and disbursements of $7,620 (plus HST) and not the $9,973.46 fee and $14,252.01 of disbursements (plus HST) formula amount.

The Associate Justice was also very critical of the Trustee’s administration and she had strong words overall for Trustees coming to court without proper evidence of the time spent when requesting approval for fees and disbursements at taxation. Her warning was that she did not accept the Trustee’s submissions that:

  • The court’s jurisdiction over approving the SRD and the fees to be claimed by the Trustee is replaced by the approval of the creditors and the OSB. Creditor and OSB approval are not determinative when it comes to taxation, but their approval is still relevant.
  • The appropriateness of the Trustee’s fees is not considered in an application for court approval of a Division I proposal. The court is not prevented from taxing the Trustee’s fee and disbursements upon the taxation of the SRD.
  • Any benefits to having a set fee remove the court’s jurisdiction to approve the Trustee’s fees. If the Trustee decides to save time by not documenting their hours worked, they do so at their own risk. The responsibility is always on the Trustee to justify their fees.
  • Creditors who want to know how much the Trustee’s fee will be cannot override the Trustee’s responsibility to explain to the court why the fee is fair and reasonable.

The court directed the Trustee to redo its SRD on the basis decided by the court, resubmit it to the Office of the Superintendent of Bankruptcy for its comment letter and then resubmit the entire package to the court for the taxation order.

A tough day in court to be sure.

Licensed insolvency trustee fees: Call us for debt-free solutions

I hope you found this licensed insolvency trustee fees Brandon’s Blog interesting. Among the many problems that can arise from having too much debt, you may also find yourself in a situation where bankruptcy seems like a realistic option.

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licensed insolvency trustee fees
licensed insolvency trustee fees
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