Lawyerment Discussion Forum
The Malaysian Law Discussion Forum for All
Forum Home | Sign In | Sign Up | Search | Help | Lawyerment HomePost a New Message | Reply this Thread | Printer

Home / Malaysia Bankruptcy Law / Business & Consumer Bankruptcy Law
All about Bankruptcy in Malaysia
All about Bankruptcy in Malaysia

New MessageAll about Bankruptcy in Malaysia (modified 0 times) Prof Dr Clement Chow
What Do You Know About Bankruptcy?

Bankcruptcy is a word that immediately brings a negative vision to our minds. It happens everywhere in the world and is not partial to a certain country, race or nationality. In Malaysia, the total number of bankruptcy cases nationwide has risen from 70,009 in 1999 to 106,000 in 2003 and today the figure stands at 160,000.

Bankruptcy law exists to help both the bankrupt and the creditor. It will stop the creditor from harassing the debtor and it safeguards the rights of both parties.

What is Bankruptcy?

Simply said, it is a legal process initiated by an individual or a company due to the inability to settle his debts. Bankruptcy happens when a person is unable to settle his debts (known as a debtor) owed to the people or party who loan him the money. The people or party who gave out the loan is known as the creditor. Creditors can be a banking institution or even a company giving out hire-purchase schemes.

To protect himself against possible harassment or from any other legal actions by the creditors, the debtor may file for personal bankruptcy.

On the other hand, the creditors may take action first against the debtor by serving him a bankruptcy notice to recover the money owed by the debtor.

Before filing a bankruptcy petition either by the debtor or creditor, the following criteria have to be met:

• The sum involved is RM30,000 or more
• The sum of money must be ascertainable (liquidated sum)
• There is a default period of six months for the act of bankruptcy to have occurred
• Before the petition date, the debtor must have reside in Malaysia for at least one year

How Does a Person Become a Bankrupt?

Generally, a person falls into bankruptcy due to several reasons. Those mentioned below are not uncommon in Malaysia.

Taking Up a Loan

There are various loans available to cater for different needs and wants. These loans can be personal loans, study or education loans, housing loans and even buying a car under a hire-purchase scheme.

Acting As a Guarantor

A guarantor can be a social guarantor or a corporate guarantor. A person who stood as a guarantor for loans like education, house, car hire purchase, scholarship and also third-party loans is known as a social guarantor.
A corporate guarantor is a person who stood for loans relating to business loans, for example in a business partnership. A guarantor is also liable to face bankruptcy when summoned by the creditors. The creditors will go after the borrower first and if that fails to recover the amount owed, they will go after the guarantor to settle the debts.

Defaulting On Credit Card Payment

The inability to pay up the amount owed in the credit card account is also one reason to go bankrupt.
In May 2008, it was reported in one of the national newspaper that last year in 2007, there were 1,873 bankruptcy cases due to credit card usage. Although the figure is still low, there is a trend showing the numbers has been rising from 1,397 in 2004, 1,479 in 2005 and 1,656 cases in 2006.

What Does It Mean To Be a Bankrupt?

When a person has declared bankruptcy, the court will appoint the Director General of Insolvency (DGI) to administer over the bankrupt’s assets in order to settle the outstanding debts. The DGI will initiate an investigation to find any assets or properties that belong to the bankrupt and to sell or dispose them to repay the creditors.

For a Malaysian, being a bankrupt is tough for the individual. Among other things, the individual faces the following hurdles or restrictions:

• He has to give up all his belongings and assets.
• He is not allowed to open a bank account without the approval of the DGI.
• He is not allowed to travel outside from the country without first getting approval from the DGI or the court. The DGI will hold his passport.
• He is not allowed to do any business nor become a company director nor even be part of the company’s management.
• He has to sacrifice a certain percentage of his monthly income to the DGI to repay his debts.
How To Avoid From Becoming a Bankrupt?

A straightforward answer to avoid becoming one of the statistics is simply to take responsibility for one’s financial affair or well-being. It means not to take huge loans to purchase something if you do not have the ability to pay back the monthly installments. It also means being in-control of one’s spending habits and not to over-commit on too many loans including hire purchase.

The same goes for the social guarantor who does not have the resources and means to settle the debts on the borrower’s behalf. So think rationally (not emotionally) and act carefully before signing on the dotted lines.

For those intending to open a business, do your research work properly and thoroughly. Ensure that you have enough financial resources and stamina for the start-up and for the first few years. Most businesses do not make money initially and may take a few years to show a profit. Imagine the worst scenario happening and whether you can survive financially. Having just the start-up capital is not enough, you need to have back-up plans and support available.

There are cases however when ill-fate strikes and a person becomes bankrupt due to unforeseen circumstances such as a serious illness, a debilitating accident or being cheated in a business partnership.

Then there are cases where a person willingly files for bankruptcy for the sole purpose of wiping off all his unsecured debts. These ‘non-genuine bankrupts’ take advantage of the legal process to ‘write off’ their bad debts and the amount can run up into the millions but is still living a luxurious lifestyle.

How a Person is Discharge From Bankruptcy

A bankrupt will be discharged from bankruptcy when

He has settled his debts in full to the creditors

If the creditors accept the repayment scheme offered by the bankrupt, then the bankrupt can make an application to the court to get an order of discharge

Certificate of discharge:
The DGI can also use his discretionary power to discharge the bankrupt by issuing a certificate of discharge. This is possible after a period of five years from the date of bankruptcy even though there still remain unsettled debts. However, the DGI will have certain criteria to evaluate before making his judgment such as the bankrupt’s conduct or behavior, the age and the financial status.

Order of discharge:
The bankrupt can make an application to the court to request for an order of discharge. The court will refer to the DGI’s report before any decision is made to grant a discharge or not or to grant a discharge with conditions attached.

When face with debts, a person should seriously consider before choosing to file for bankruptcy. There may be other better options to choose from. Besides the restrictions mentioned above, the bankrupt may face other personal challenges. His future plans and personal development may be negatively affected due to his ‘bankrupt reputation’. Society naturally will see him in a different light and treat him differently. In addition, it may affect his ability or opportunity to apply for future loans in order to advance himself in his career or business.

Therefore, consider yourself to have been forewarned on this subject matter after reading this article.

For more detail information and to gain a deeper knowledge on the subject of bankruptcy, the following websites can be referred to:

* • http://www.insolvencyreg.org
* • http://www.lawyerment.com.my
* • http://www.worldlawdirect.com

This article is shared by Jacquelyn Wong, a regular contributor for KCLau’s Money Tips.

02 Dec, 2008 16:24:04

New MessageRE:All about Bankruptcy in Malaysia (modified 0 times) SAMSIM
Hi Prof,

Thanks for the info.

Appreciate if you can share the filing of bankruptcy petition breakdown (between the debtor and creditor).

TQ.

20 Dec, 2008 22:26:23

New MessageAll about Bankruptcy in Malaysia (modified 0 times) Prof Dr Clement Chow
BRIEF BREAKDOWN

Letter of Demand sent by bank's lawyer
|
Summon served by bank's lawyer
|
Judgment obtained in court
|
Execution of Judgment in court
|
Bankruptcy Notice served to the debtor
(personally or advertised on newspaper)
|
Bankruptcy Petition served in court
|
Receiving Order to the debtor -> Bankrupt

22 Dec, 2008 10:41:24

New MessageHow about my ASB (modified 0 times) Van Huzendt
What will happen to my ASB in case I am declared a bankrupt?
11 Mar, 2009 06:14:16

New MessageRE:All about Bankruptcy in Malaysia (modified 0 times) Worried
"If the creditors accept the repayment scheme offered by the bankrupt, then the bankrupt can make an application to the court to get an order of discharge"


Referring to the above statement, how should i go about with this? I have a 31k debt with a local bank. According to the bank, I am declared a bankrupt. Do i have to negotiate with the official asignee or with the bank directly? Has anyone ever done this before? Any success? How long is the process to get discharged?

03 Mar, 2011 11:35:37

New MessageRE:All about Bankruptcy in Malaysia (modified 0 times) Calyn
My daddy in under bankruptcy now due to business downturn. How long can the passport last him to the moment where he can still travel out of Malaysia with my mummy ? What is the criteria for to get Certificate of discharge?
12 Nov, 2013 09:28:00

New MessageRE:All about Bankruptcy in Malaysia (modified 0 times) lawnovice
aiyo, prof, is not call "Bankruptcy Petition" lah, is "Creditor Petition"

both must be serve personally or via substitute of service

for layman "service" here mean "method of sending those document"

you can fight both "Bankruptcy Notice" and "Creditor Petition" with the same law (not all, but 98%)

12 Nov, 2013 11:14:25

New MessageRE:All about Bankruptcy in Malaysia (modified 0 times) joyce
Queation : Before the petition date , the debtor must reside in malaysia for at least 1 year...

This mean that if petition date, i am not reside in malaysia , they can't sue me bankruptcy?

Pls give some information, when petition date, i am not reside in Malaysian at least 3 years . Pls advice.

I am a bankruptcy now.

10 Dec, 2013 15:22:22

New MessageRE:All about Bankruptcy in Malaysia (modified 0 times) lawnovice
Why you want to know? Since you're already bankrupt, do you think you can get court to overturn this?

I would suggest that you search for example cases where bankruptcy is fought off because of this reason.

Anyone here has subscription to search for authority cases from the web? Please help joyce...

10 Dec, 2013 23:40:01


Post a New Message | Reply this Thread | Printer | Forward
All times are MYT


Copyright © 1999-2014 Lawyerment.com. All rights reserved

Privacy Policy | Terms Of Use | Contact | About Us | Advertising Opportunities
Disclaimer - Please Read Carefully

These Bulletin Board pages are intended as a public service primarily to allow non-lawyers and lawyers to share experiences and opinions with other non-lawyers and lawyers. They are NOT intended to be a source of advertising, solicitation, legal advice, self-promotion or disparagement. Lawyerment assumes absolutely no responsibility for postings or their content. Visitors may post questions, comments and replies without prior review by Lawyerment, but we reserve the right to delete any postings (in whole or in part) for any reason at any time.
However, the fact that a posting remains on site NEVER means that it has been approved or endorsed by Lawyerment. By making a posting you are agreeing that the material you post becomes the property of Lawyerment. Lawyerment is a unit of Magnificent Communication. Visitors should exercise great caution when reading this (or any other) Bulletin Board. Be aware that those who post messages may not be who they claim to be. Never to rely on any advice in legal matters except from an attorney you have retained to represent you and your interests. To locate and retain an attorney we suggest you visit our Lawyerment Lawyers' Directory.
Click here to visit Lawyerment.com for 1000's of answers to legal questions. Please read our Privacy Policy and Disclaimer & Conditions Of Use.
Copyright © 1999-2014 Lawyerment.com. All rights reserved