What happens to your debt after Bankruptcy?

Are you wondering what happens to the debt after bankruptcy?

The risk of having a client declare bankruptcy is a possibility all businesses face, and when you find yourself in this situation what are your rights regarding the debt owed?

Is it possible to recover the outstanding amount owed to you?

If an individual is no longer able to pay their creditors, they can seek relief from their debts by filing for bankruptcy to discharge their debts, through the court.   

When the bankruptcy is granted, the Government or Court will appoint a trustee, as the trustee it is their job to manage the bankrupt estate, working out how to distribute any assets after establishing what priority to give the creditors.

The trustee will notify you, if you are one of the listed creditors to advise the possibility of you receiving any funds from any liquidation of the debtors’ assets.

In order for you to recover your outstanding debt, proof of the debt detailing what you are owed and the circumstances, needs to be lodged with the trustee.

The probability of recovering your money back is dependent on the number of creditors involved, the more creditors there are the less chance you will have in payment, and the client’s likelihood to have any available tangible assets in which the trustee can liquidate.

If the client is a small business, it is often the case, they will have no assets that can be liquidated for cash.

In this article our debt collectors will discuss what happens to the debt after bankruptcy and how you can go about collecting your debts in this circumstance.

What happens to the debt after Bankruptcy?

In order to avoid violating the Bankruptcy Act 1966 (Cth) and possibly being sued you should immediately cease any debt collection processes.  You can however contact the trustee, or solicitor who notified you of the bankruptcy to find out further details and ask any questions that you might have.

Seeking professional debt collection advise is highly recommended at this point as a precaution to yourself to ensure you are following the correct steps in the proceedings.

As a business owner you should always take a proactive approach in avoiding bad debts, to save your self the difficult and long process of trying to obtain payment when a client becomes bankrupt. 

Preventative measures including completing credit checks on new clients and checking trade references these things can help you determine a clients business history and the risk they could be of becoming bad debtors.

Once these initial checks are done and the client checks out it is vital to communicate your businesses terms of trade, clearly pointing out failure to stick to the terms will make them liable for collections costs including any fees associated with engaging a professional debt collection agency.

In the situation where you have doubts about the potential client, but are considering their business anyway it would be wise to ask for deposits, or upfront payments perhaps put retainers in place prior to any goods or services being done.

Don’t forget your existing client’s payment behaviours too, if a good paying client is taking longer and longer to pay this could be a warning sign of trouble.  If after sending out three payment reminders the client has still not made payment, we strong suggest you seek help form a debt collection agency.

When all is said and done, completing your due diligence prior to considering giving credit to anyone is your best defence is to protecting your business against bankrupt clients.

Types of Debts Not Cleared by Bankruptcy?

It can be really difficult as a business owner to lose so much money from just one debtor and seemingly not be able to do much about it.

After all, if the debt has been cleared due to their financial situation and their choice to declare bankruptcy, what is there that you can do?

Fortunately for some businesses, not all debts can be cleared by debt collection.

The Australian Government understands that some debts need to be paid one way or the other.

As much as this results in some businesses still losing some or all of the payments of debt, it can be very helpful for some other businesses.

The following are some of the debts not cleared by bankruptcy:

1. Student loans
2. Child support
3. Debts incurred illegally
4. Fines or penalties
5. Debts incurred after filing

We will explain these in more detail below.

Debts Not Cleared by Bankruptcy - Student Loans

The first type of debt that will not be cleared if a client declares bankruptcy that we will discuss is student loans.

Student loans are loans taken from lenders specifically for the purpose of investing in extended education, such as university or TAFE.

This is because these types of loans are considered an investment in yourself and your future, as you can earn more money within a job or apply for higher-paying jobs if you have some of these things behind you.

So, you’re a business involved in providing students with loans and you have just had a client go bankrupt. What can you do?

For starters, know that you are entirely entitled to collect this debt still.

You may, however, have trouble doing so, seeing as your client probably has little to no money.

In this circumstance, it is best to attempt to form a payment plan or at least continuously contact your client requesting payment so that the statute of limitations does not run out.

Debts Not Cleared by Bankruptcy - Child Support

Another common type of debt that will not be cleared if a client declares bankruptcy is child support.

Child support payments are payments that a parent will make to another parent that is the primary or sole caregiver of one or more children.

Alimony is the payments that a party makes to another after divorce.

These debts are quite personal and probably quite essential.

If a spouse held a majority of the funds or if a parent is no longer present to support their children, the other party may be struggling to keep up with the essentials of living and raising their family.

This is why these sorts of debts are not cleared.

If the other party declares bankruptcy and is no longer making payments, it may be in your best interest to hire a lawyer or debt collector to help you out. 

Debts Incurred Illegally

Another type of debt that a client may owe that is not cleared by bankruptcy is any debt that is incurred illegally.

This one may be a little more obviously not cleared, but if a client engages in any type of fraud to, for example, receive credit, they will still have to pay this debt.

This is because the legislation does not cover debts obtained in this manner and the client will, at the very least, have to pay back the debt for their misconduct.

If you have a client that you come to find out has applied and received any form of credit by committing fraud, you can go about prosecuting them for their actions.

This may result in a fine, which will be discussed next in the case of bankruptcy, or another penalty.

Your money should also be paid to you. 

Debts Not Cleared by Bankruptcy - Fines or Penalties

Another common type of debt that will not be cleared if a client declares bankruptcy is any type of fine or penalty.

Fines or penalties are charges that a person will receive due to an action that breaks the law, whether it be civil or criminal.

As this is a charge due to illegal actions, it will also still apply as a form of justice, in the same way, that debts incurred by fraud will.

As the government is responsible for these debts you will likely not have a debt like this, but if someone owes you money for damages or something similar, you can hire a lawyer to help you!

Debts Incurred After Filing

Debts incurred after filing for bankruptcy are another common type of debt that will not be cleared by bankruptcy.

Debts incurred after filing for bankruptcy will not be cleared as they are created while the debtor is fully aware of their financial situation and should, therefore, remain their responsibility.

If you have a client that has taken out a debt with you, make sure to check their credit reports and other such services to see if they have any recent encounters with bankruptcy.

You can otherwise proceed to collect the debt.

Key Takeaways on Debts Not Cleared by Bankruptcy

Dealing with a client’s bankruptcy can be difficult.

You should, however, make sure that your debt is cleared or not by their declaration of bankruptcy!

If so, it is always best to try to negotiate a payment plan so that you can still get your money without too much struggle or complications.

The Impact of Bankruptcy on Debt Collection in Australia

Debt collection is the practise of collecting money owed to individuals or corporations (known as creditors) by people who owe money (called debtors).

The Australian Securities and Investments Commission (ASIC) regulates the debt collection industry in Australia to ensure that debt collectors comply to ethical and legal requirements.

But what happens when a debt collector is confronted with a debtor who has filed bankruptcy, or is threatening to go bankrupt?

In this article, our debt collectors aim to explore the impact of bankruptcy on debt collection in Australia.

What Exactly is Bankruptcy?

When an individual or a corporation is unable to pay their obligations, they can file for bankruptcy.

The Australian Financial Security Authority oversees the personal insolvency procedure in Australia (AFSA).

When an individual or a corporation is declared bankrupt, their assets are liquidated and the money used to repay their obligations.

This procedure may have a substantial influence on debt collection, therefore understanding how bankruptcy impacts debt collection in Australia is critical.

Understanding the Bankruptcy Process in Australia

Bankruptcy is a major and significant choice that can have long-term consequences for your financial future.

Before making this decision, a debtor must fully understand the personal insolvency procedure in Australia and what it includes.

This guide to bankruptcy and debt collection will offer you with a full overview of the bankruptcy procedure in Australia, whether you are considering bankruptcy or are simply interested about the process.

What are the Eligibility Requirements for Bankruptcy in Australia?

To be eligible for bankruptcy in Australia, an individual must meet certain requirements. These include:

1. Being unable to pay debts as they fall due.
2. Having debts of at least $10,000.
3. Residing in Australia or owing debts in Australia.

How does a Debtor Declare Bankruptcy in Australia?

Declaring personal insolvency in Australia is a simple process that consists of the following steps:

1. Consult a financial advisor, a bankruptcy trustee, or a solicitor.
2. Fill out the Australian Financial Security Authority's Online Debtors Petition (Form B8) (AFSA).
3. Attend a creditors' meeting if one is required.
4. Wait for the AFSA to rule on your bankruptcy.

A creditor may also file a creditor's petition in Australia's Federal Circuit and Family Court.

The Effects of Bankruptcy in Australia

Declaring bankruptcy in Australia can have significant consequences. Some of these include:

1. The sale of your assets: Bankruptcy trustees are authorized to search for and sell your assets to repay your creditors.
2. A reduction in your credit score: Bankruptcy will remain on your credit report for up to seven years and can negatively impact your credit score.
3. Limitations on credit: You may find it difficult to obtain credit for several years after declaring bankruptcy.
4. Restrictions on employment: Certain jobs may be off-limits to individuals who have declared bankruptcy.

The Impact of Bankruptcy on Debt Collection

When an individual or a company declares personal insolvency, their debts become uncollectible.

This means that debt collectors can no longer pursue the debtor for payment, and the debt is considered written off.

However, there are some exceptions to this rule. Debts that are exempt from being written off include:

1. Child support debts.
2. Debts incurred as a result of fraud.
3. Debts incurred while driving under the influence of drugs or alcohol.
4. Debts incurred while committing a criminal offence.

Debt collectors must cease their collection activities when they receive notice of a debtor's bankruptcy. If they do not, they may face penalties from ASIC.

What Happens to the Debts after Bankruptcy

When a debtor is declared bankrupt, their assets are sold, and the proceeds are used to pay off their debts. This process is known as sequestration, and it is managed by a trustee.

The trustee is responsible for selling the debtor's assets and distributing the proceeds to their creditors.

If the proceeds from the sale of the debtor's assets are not enough to cover the debts, the creditors will receive a proportionate share of the available funds.

Will Bankruptcy affect the Credit Score?

It is important to note that the bankruptcy process can have a significant impact on an individual's credit score.

A bankruptcy declaration remains on an individual's credit file for seven years, and it can make it difficult for them to obtain credit in the future.

Can Debt Collectors Still Pursue Debtors after Bankruptcy

Debt collectors cannot pursue debtors for payment once they have been declared bankrupt.

However, if a debt collector believes that the debt is exempt from being written off, they may still pursue the debtor for payment.

If a debt collector continues to pursue a debtor for payment after they have been declared bankrupt, they may face penalties from ASIC.

What is the Effect of Bankruptcy on Creditor Claims?

The impact of bankruptcy on creditor claims is determined on the type of debt and the claim's priority.

When a person files bankruptcy, their assets are liquidated and the money utilised to repay their creditors.

Mortgage lenders, for example, have a greater priority and are paid first.

Unsecured creditors, such as credit card firms, and most unpaid invoices have a lower priority and may not be paid in full or at all.

Creditors may be able to bring a claim against the individual's estate even after the bankruptcy procedure is completed in specific situations.

To identify the best course of action, it is critical to understand the impact of bankruptcy on creditor claims and to seek the opinion of a financial specialist or bankruptcy trustee.

Can a Secured Debtor Recover their Debt from a Bankrupt?

A secured creditor can attempt to recover the debt from a bankrupt individual.

In some cases, the secured creditor may be able to recover the debt by repossessing and selling the collateral used as security for the debt.

However, this will depend on the specific circumstances of the bankruptcy case and the terms of the security agreement.

If the proceeds from the sale of the collateral are not enough to cover the debt, the secured creditor may receive a proportionate share of the available funds along with other creditors.

The Impact of Personal Insolvency on Secured and Unsecured Debts

The effects of bankruptcy on secured and unsecured obligations vary greatly.

Secured debts are those in which the creditor has a security interest in an asset, such as a home or a car. In the case of bankruptcy, the secured creditor may seize and sell the collateral to recoup the outstanding obligation.

Before any unsecured obligations are satisfied, the profits from the sale of the collateral are used to reimburse the secured creditor first.

Unsecured debts, on the other hand, are those in which the creditor does not have a security interest in an asset.

Unsecured creditors are frequently not completely compensated in the case of bankruptcy and may not get any payment at all.

It is important to understand the impact of personal insolvency on both secured and unsecured debts and to seek the advice of a financial professional or bankruptcy trustee to determine the best course of action.

The Role of the Australian Financial Security Authority (AFSA)

The Australian Financial Security Authority (AFSA) is an important part of the bankruptcy procedure in Australia.

AFSA is the federal institution in charge of handling personal insolvency, including bankruptcy.

By overseeing registered trustees, conducting investigations, and taking enforcement action where appropriate, the agency seeks to maintain the fair and efficient operation of the personal insolvency system.

AFSA also provides information and assistance to individuals and organisations in financial distress, as well as a variety of services to help with debt management and insolvency.

Furthermore, AFSA maintains a nationwide database of bankruptcies that credit reporting agencies, creditors, and other authorised parties can access.

AFSA's mission in the personal insolvency process is to defend creditors' and debtors' rights while also ensuring the system's integrity.

Strategies for Recovering Debts from a Bankrupt Person

Recovering debts from a bankrupt individual can be a difficult procedure, but creditors have various options. One option is to work out a payment plan with the bankrupt individual.

This may entail establishing an agreement on the amount to be paid as well as the payback period.

Another option is to seek an annulment of the personal insolvency, which can be allowed in certain situations, such as if the bankruptcy was caused by the bankrupt individual's misbehaviour.

Creditors may also petition the court for a modification of the bankruptcy order if they feel the bankrupt individual is capable of repaying their obligations.

Finally, creditors might seek advice from a financial advisor or a debt collector to determine the best course of action.

It is important to remember that the strategies for recovering debts from a bankrupt individual may differ depending on the specific circumstances, and it is strongly advised that you get legal guidance before taking any action.

Client Bankruptcy Risk: 11 Strategies for Protecting Your Business

Running a successful business presents several difficulties for Australian business owners. The potential for customer / client bankruptcy is one of the hazards you need to be aware of.

Client bankruptcy is a major concern for businesses of all sizes. When a client declares bankruptcy, it can lead to financial losses, unpaid bills, and a reduction in revenue.

Your personal financial security may be seriously impacted if one of your clients goes bankrupt.

Therefore, it is crucial for businesses to take necessary precautions to protect themselves from this risk.

However, you may lessen the chance of Australian client bankruptcy and safeguard your company from its financial effects by putting in place efficient procedures.

Bankruptcy is a threat to any business, and it is crucial to take necessary precautions to safeguard your company from financial loss.

The following strategies can help you mitigate the risks and keep your business secure.

What is Client Bankruptcy in Australia?

The legal process known as bankruptcy can help those who are unable to pay their debts if they are unable to pay then as they become due and payable.

A person who becomes bankrupt (by debtor’s petition, or creditor’s petition) is essentially handing over control of their finances and assets to a bankruptcy trustee, who will manage them and distribute any money to the creditors of the bankrupt.

In exchange, the bankrupt may be forgiven of the bulk of their debts and financial obligations, enabling them to start again.

While bankruptcy can help people who are struggling financially, it may mean that creditors will receive nothing toward their unpaid invoices and aged debt, or sometimes only a few cents in the dollar.

Understanding the Risk of Client Bankruptcy

Understanding the risk of client bankruptcy is crucial before we can talk about methods to reduce it.

When a customer is unable to pay their debts, including unpaid amounts owed to your company or business, this is known as being “insolvent” and may result in your client’s bankruptcy.

Several factors, including economic downturns, company failures, or personal tragedies, might lead to the circumstance of a client/customer becoming insolvent, and therefor bankrupt.

It poses a considerable risk to a creditor’s business since it may result in monetary losses, legal disputes, and ultimately the debt/unpaid invoice being written off.

Strategies for Mitigating the Risk of Client Bankruptcy

There are several strategies that businesses can use to mitigate the risk of client bankruptcy. These strategies are as follows:

1. Conduct a financial risk assessment.
2. Create payment plans.
3. Diversify your client base.
4. Do your due diligence on new clients.
5. Get professional advice.
6. Monitor payment performance.
7. Obtain security.
8. Use contractual protections.

We will explain each of these in more detail below.

Conduct a Financial Risk Assessment

A financial risk analysis must be done before beginning any commercial engagement, especially if you are going to be offering credit terms.  Reviewing the potential client's financial records, credit history, and payment history should all be part of this evaluation.

You can determine the degree of risk associated with the client and decide whether to accept the business from this potential client/customer.

We would strongly advise carrying out a financial risk analysis as a preventative action to lower the likelihood of client bankruptcy.

This will identify possible areas of concern and create methods to reduce risks by carefully examining a client's financial condition, including their assets, obligations, income, expenses, and cash flow.

A financial risk assessment can assist you in determining the client's capacity to pay debts and seeing any red flags that may point to upcoming financial problems.

It will also assist you in making educated decisions about the financial management of this new client and taking preventative measures (cash on delivery, for example) to avoid the significant repercussions of bankruptcy by completing a financial risk assessment.

Do your Due Diligence on new clients.

Doing extensive due research on new clients is the first step in reducing the danger of client bankruptcy. This include investigating their reputation, financial standing, and credit history.

These details are accessible via public records, credit reporting companies, and other trustworthy sources.

Due diligence also entails a comprehensive investigation of the potential new client, including a review of all pertinent financial papers and legal and contractual agreements.

By doing out due diligence, you can find potential problems that could affect the viability of this client relationship and create plans to reduce any risks (for example, there may be a long litigation history).

Due diligence can also assist you in seeing any red flags that can point to upcoming financial problems, enabling you to take preventative measures to avoid the devastating repercussions of bankruptcy.

Due diligence is therefore a crucial phase in any company transaction and can assist in safeguarding the financial interests of all parties.

By doing this, you may concentrate on clients who are financially stable rather than working with individuals who are at a greater danger of bankruptcy.

Use Contractual Protections

While working with clients who take credit, you must use contractual safeguards to better safeguard your business against client bankruptcy.

This entails including provisions in your contract that outline payment procedures, delivery timetables, and other crucial conditions that are crucial to your company.  Some of these may include (by way of example):

1. Personal guarantee - This clause requires a third party to guarantee payment in the event that the client becomes insolvent and goes bankrupt.
2. Retention of title - This clause allows the seller to retain ownership of the goods until payment is made in full.
3. Security interest - This clause allows the seller to take a security interest in the goods sold, which gives them priority over other creditors in the event of the client bankruptcy.
4. Termination for insolvency - This clause allows the contract to be terminated the right to stop delivery of goods or services if the buyer becomes insolvent.

In the event of client bankruptcy, these contractual safeguards may be able to aid in your recovery of any losses.

Obtain (and actually lodge) Security

Obtaining security, such as a security interest in the client's assets, can be an effective way to mitigate the risk of client bankruptcy.

Obtaining security gives you the legal power to seize the secured property in the event of non-payment and can take many different forms, including a mortgage or a charge over the borrower's assets.

You can lower the risk of non-payment in the case of the client’s bankruptcy or liquidation and strengthen their position as a creditor by obtaining security.

Moreover, security can give the you more negotiating power with the client/customer and help to ensure that you are able to collect your unpaid debts.

For example, lodging a charge on the Personal Property Securities Register ensures that you are secured. However, it is one thing to have a security interest in your contract, but you must also ACTUALLY REGISTER YOUR INTEREST.

Getting security is an important step for any business and can aid in protecting their financial interests in the event that the client files for bankruptcy.

By obtaining security, you can ensure that you have a legal claim on the client's assets if they are unable to pay their debts.

Monitor Payment Performance

Regularly tracking payment performance is another powerful tactic for defending your company against client bankruptcy.

You can take corrective action and lower the risk of loss by monitoring payment schedules and spotting any delays or missed payments early on.

For example, if they are continually late with payments, put them on COD or reduce the credit limit that you give them.

Also, you should get in touch with your client and solve the problem as soon as you discover any problems with payment performance.

Diversify Your Client Base

The danger of client insolvency can also be reduced by diversifying your clientele.

You can lessen your reliance on any one specific client by spreading your risk among a number of clients.

This plan helps ensure that, even if one of your clients files for bankruptcy, your company won't sustain large financial damages.

Create Payment Plans

If your client has expressed to you that they are unable to pay their debts (and therefore likely insolvent), making payment arrangements with this client can be a successful strategy to reduce the risk of customer bankruptcy.

You may make sure that your customers are paying their debts on time and within budget by setting up a structured payment plan, with dates and amounts for payment.

The risk of bankruptcy can be decreased by using this method to help clients avoid getting too far behind on their payments.

Get Professional Advice on Client Bankruptcy

Finally, you should see a specialist if you are worried about the chances of a client filing for bankruptcy.

You can learn more about your legal rights and obligations from a qualified business advisor or solicitor, who can also offer advice on risk-reduction tactics.

This might assist you in making wise choices and shield your company from the financial effects of client bankruptcy.

Client Bankruptcy - Conclusion

In conclusion, customer / client bankruptcy is a serious risk to your business, thus it's critical to take the required action to safeguard your business in Australia.

You may reduce the risks and keep your business secure by doing a financial risk assessment, diversifying your clientele, developing payment arrangements, and securing security. These tactics can aid in avoiding monetary losses, legal disputes, and harm to your company's brand.

To secure the long-term success of your company, it is crucial to put these methods into practise and to keep a close eye on your clients' financial situation.

Bankruptcy & Debt Collection FAQs

This FAQ section answers some common questions about bankruptcy and debt collection in Australia. It covers topics such as what happens to debts after bankruptcy, how to collect debts from bankrupt clients, and which debts are not cleared by bankruptcy.

If you have any further questions about bankruptcy or debt collection, you should contact a lawyer or debt collection agency for advice.

What happens to my debt after a client declares bankruptcy?

If a client declares bankruptcy, you must immediately cease any debt collection activities. You can, however, contact the trustee or solicitor who notified you of the bankruptcy to find out further details and ask any questions that you might have.

How can I collect my debt from a bankrupt client?

You may be able to recover some or all of your debt from a bankrupt client, but it will depend on a number of factors, including the number of creditors involved, the client's likelihood to have any available tangible assets that can be liquidated for cash, and the type of debt.

What types of debts are not cleared by bankruptcy?

The following types of debts are not cleared by bankruptcy in Australia:

1. Student loans
2. Child support
3. Debts incurred illegally
4. Fines or penalties
5. Debts incurred after filing for bankruptcy

What is the impact of bankruptcy on debt collection in Australia?

Bankruptcy can have a significant impact on debt collection in Australia. Once a client is declared bankrupt, their assets are liquidated and the money used to repay their obligations. Debt collectors may have difficulty recovering debts from bankrupt clients, as they may have few or no assets to sell.

What should I do if a client threatens to go bankrupt?

If a client threatens to go bankrupt, you should contact a lawyer or debt collection agency to discuss your options. They can advise you on the best way to proceed and help you protect your interests.

How debts are paid after bankruptcy?

After bankruptcy is granted, a trustee is appointed to manage the bankrupt estate. The trustee is responsible for selling any assets that the bankrupt person owns and using the proceeds to pay off creditors. Creditors are paid according to a priority system set out in the Bankruptcy Act 1966 (Cth). Secured creditors are paid first, followed by preferential creditors, superannuation creditors, and unsecured creditors. If there are not enough assets to pay off all of the creditors, some creditors may not receive any payment.

Does bankruptcy clear all debts?

Bankruptcy does not clear all debts in Australia. The debts listed above will still be owed after bankruptcy.

Does bankruptcy clear Centrelink debt?

Centrelink debt is not cleared by bankruptcy in Australia. Centrelink debt is considered a priority debt, so it will be paid off before other unsecured debts.

What happens to debt collectors when a debtor declares bankruptcy?

Debt collectors must cease their collection activities when they receive notice of a debtor's bankruptcy. If they do not, they may face penalties from ASIC.

Can debt collectors still pursue debtors for payment after personal insolvency?

Debt collectors cannot pursue debtors for payment once they have been declared bankrupt, with the exception of certain exempt debts.

What happens to the debts after a debtor declares personal insolvency?

The assets of the debtor are sold, and the proceeds are used to pay off their debts. If the proceeds from the sale of the assets are not enough to cover the debts, the creditors will receive a proportionate share of the available funds. The debt is considered written off, and debt collectors can no longer pursue the debtor for payment. However, there are some exceptions to this rule, such as debts incurred as a result of fraud or criminal offenses, which are exempt from being written off.

Additional tips for businesses dealing with bankrupt clients

1. Complete credit checks on new clients and check trade references before providing credit.
2. Communicate your business's terms of trade clearly and let clients know that failure to stick to the terms will make them liable for collections costs.
3. If you have doubts about a potential client, ask for deposits or upfront payments before providing goods or services.
4. If a client has not made a payment after three reminders, seek help from a debt collection agency.
5. By following these tips, businesses can minimize their risk of losing money to bankrupt clients.