Full Text - The Law Society of Saskatchewan

T ABLE OF CONTENTS
COMPLETING AND FILING PROOF OF CLAIM
I.
COMPLETING AND FILING PROOF OF CLAIM FORM
II.
CHECK LIST FOR COMPLETION OF PROOF OF CLAIM FORM
III.
POWERS OF SUPERINTENDENT
2
APPENDICIES
CORPORATE CLAIM UNSECURED
4
INDIVIDUAL CLAIM PARTIALLY SECURED
7
•••
Consumer and
Corporate Affairs Canada
Office of the Superintendent
of Bankruptcy
Consommation
et Corporations Canada
Bureau du Surintendant
des faillites
COMPLETING AND FILING PROOF OF CLAIM FORM
The most important document for a creditor to complete upon being
notified of a bankruptcy is the Proof of Claim form.
This is form 61 in the Bankruptcy Act. A sample of completed forms
are attached as exhibit A and exhibit B.
This
form must be completed accurately with supporting
documentation attached.
When it is filed with the trustee it
establishes the creditors right to share in the Estate assets, vote
at Creditors meetings, to either aff irm the appointment of the
trustee or substitute another licensed trustee and appoint
Inspectors.
without this document being filed the creditor has no say in the
Bankruptcy.
CHECK LIST FOR COMPLETION OF PROOF OF CLAIM FORM
(See attached Proof of Claim Forms)
PROOF OF CLAIM OPENING PARAGRAPH
Required - Name of Debtor and name' of Creditor
SECOND PARAGRAPH - #1 & 2
Name of person completing the Proof of Claim and in case of a
corporate claim what position he/she holds.
#3
The date of Bankruptcy and amount owing to that date including
interest supported by statement of account and proof of
indebtedness such as copy of promissory note etc. or sworn
affidavit.
NOTE:
A detailed statement of account must be attached to the Proof of
Claim and must show the date, the number and the amount of all the
invoices or charges, together with date, the number and the amount
of all credits or payments. A statement of account is not complete
if it begins with an amount brought forward.
The balance
outstanding on the statement must agree with the amount the
creditor is claiming. Re: Mindens Ltd. (1933) 14 C.B.R.' (NS) 145
CCA 3159 (7,89) 45
Canada
•••
L;onsumer and
Corporate Affairs Canada
Office of the Superintendent
of Bankruptcy
Consommatlon
et Corporations Canada
Bureau du Surintendant
des faillites
Page 2
#4
Unsecured creditors would check 4A and also if they are claiming
preferred under section 136 such as a wage earner claim.
#4B
A secured creditor must value the security and give particulars of
security attaching a copy of the security documents.
NOTE:
Merely to state security not valued yet or not determined would
invalidate the Proof of Claim for voting purposes.
#4C
Is self explanatory.
#5
It is very important this section is completed as certain related
parties under section #4 are not entitled to vote See section 113
(3) of the Bankruptcy Act.
#6
This section must also be completed. While it may not have any
bearing on eligibility to vote it is for the trustees information
regarding possible preferences.
Finally the Proof of Claim must be signed and witnessed.
It is to be noted a corporation as such can not attend or vote at
a meeting, but it can do so by way of proxy Section 109 (5) of the
Bankruptcy Act. Therefore in the case of a corporate claim the
proxy appointing an. individual to represent it must be completed.
A copy of the proxy form #59 is attached to the Proof of Claim as
Exhibit "A" & "B".
If any section of the Proof of Claim is not completed it has the
effect of nUllifying it for voting purposes.
In addition to be
able to vote the co~pleted Proof of Claim must be delivered to the
trustee prior to the meeting of creditors.
It was held in one
court case that the Proof of Claim filed one (1) minute after the
time of the meeting the vote should not be allowed.
Canada
Consumer and
Corporate Affairs Canada
Office of the Superintendent
of Bankruptcy
Consommation
et Corporations Canada
Bureau du Surintendant
des faillites
Page 3
Quotes from Holden & Morawetz:
"The provision of s.124(4)of the Bankruptcy Act in regard to proof
of claims are not merely directory but are mandatory. If there is
not a reasonable compliance with the statutory requirements, the
Proof of Claim must be disregarded for voting purposes but in
determining what is reasonable compliance what are obviously
clerical errors should be ignored, and reasonable allowance ought
to be made for the fact that the Bankruptcy Act is a businessman's
statute and contemplates that they will file their own claims: Re
D.W. McIntosh Ltd. (1939), 20 C.B.R. 267 (Ont. S.C.)"
"The Official Receiver is entitled to refuse to accept the vote of
a creditor present at the meeting of creditors if there are no
vouchers in support of the Proof of Claim, notwithstanding. that
fact that the vouchers are in the possession of the creditor who is
present at the meeting and who wishes to produce them.
The
Official Receiver may use discretion when the Proof of Claim is
from a workman or a layman, but, when it emanates from a trader and
is against a trader, there is no excuse and it must be in proper
form:
Re corduroys Unlimited In.c; Grobstein and Lawrence v.
Canadian corduroys Ltd. (1962), 4 C.B.R. (N.S.) 250 (Que. S.C.).
CCA 3159 17891 45
Canada
EXHIBIT
:1
- 4 -
A"
CORPORATE CLAIM
UNSECURED
FORM
61
Proof of Claim
(Subsection 50.1(1)« paragraphs 51(1) (e) and 66.14(b)
and subsections 81.2(1)« 102(2) c 124(2) and 128(1)
In the matter of the bankruptcy
(~~sal-~ recervers'l'ri:"p
~-~fte-~re~er~yt of.J~~.a~4~t •.••••••••••••..
of ••• SAS~~TOOij,.~~~~,........•..... (city and
claim of
a~~~.O~.1QVij.~Qijij
, creditor.
(name of debtor),
province) and the
I, .BAFF1.S~1Tij..........•. ~ ~ ~ - ~ ~ , of
.. SAS~AXOO~,.S~S~•....... (city and province), do hereby certify:
1. That I am il=g~eQ~te~-ei-:Efte-il~,,"e nemed--deb'tv1O (~""'t:hat:--rQ111
..the.~N~~EF.•••••••••••• (state position or title) of .~~.~A~~.
DE.XOV~.XO~N..• (name of creditor».
2. That I have knOWledge of all the circumstances connected
with the claim referred to in this form.
3. That the said debtor was at the date of bankruptcy (or the
proposal ~ the receivership), namely the •• ~th.,day of
~v~c.~ ••• ,1992., and still is indebted to the above-named
creditor (referred to in this form as "the creditor") in the sum
of $~5~D_DD••••• , as shown by the statement of account (~
affidavit) attached hereto and marked "Schedule A", after
deducting any counterclaims to which the debtor is entitled.
(The attached statement of account or affidavit must specify the
vouchers or other evidence in support of the claim.)
4. (Check and complete appropriate category.)
( X)
A. UNSECURED CLAIM
That in respect of the said debt, I do not hold any
assets of the debtor as security and
(Check appropriate description.)
( X) I do not claim a right to a priority.
(
) I claim a right to a priority under section 136 of
the Bankruptcy and Insolvency Act. (Set out on an
attached schedule details to support priority
claim. )
- 5 -
FORM 61 -- Continued
(
B. SECURED CLAIM
That in respect of the said debt, I hold assets of the
debtor valued at $ •••••• as security, particulars of
which are as follows:
(Give full particulars of the security, including the
date on which the security was given and the value at
which the creditor assesses the security, and attach a
copy of the security documents.)
()
C. CLAIM BY FARMER, FISHERMAN, OR AQUACULTURIST
That I hereby make a claim under subsection 81.2(1) of
the Bankruptcy and Insolvency Act for the unpaid amount
of $...... (Attach a copy of sales agreement and
delivery documents.)
5.' That to the best of my knowledge and belief, ~~-~Qr the
above-named creditor is) (~-~~~-is not) related to the
debtor within the meaning of section 4 of the Bankruptcy and
Insolvency Act.
6. That the following are the payments that I have received
from and the credits that I have allowed to the debtor within the
three months (or, if the creditor and the debtor are related
within the meaning of section 4 of the Bankruptcy and Insolvency
Act, within the 12 months) immediately preceding the date of
bankruptcy: . August 100
October 100
September 100
(Provide details of payments and credits.)
Dated at .aJ\aKA'tQQN................ this • A.tb.. day of
...... JANUAR~ .1~~2
•••••• J~~E
.WijL~
witness
•••••••••••••
•
~.
Sl-UXH. .-. MANN;ER ••••••••••
Creditor
BANK OF YOUR TmvN
NOTE: If an affidavit is attached, it m~st have been sworn to
before a person qualified to take affidavits.
WARNINGS: A trustee may, pursuant to subsection 128(3) of the
Bankruptcy and Insolvency Act, redeem a security on
payment to the secured creditor of the debt or the
value of the security as assessed, in a proof of
security, by the secured creditor.
- 6 -
"FORM 59
General Proxy
(Paragraphs 51(1) (el and 66.15(3) (b) and subsection 102(2»
In the matter of the bankruptcy
(~-~~-~-~
~~&a:l:-)--e~ ••• ~I~.~~l2-<;IS.••••••••••••••••••••••••••••••
bankrupt
I
(~-aR-.iR&iiQ.l:V&R:t-PQZ;SO~-~-aco n
(~We),
,
a
S W.er.. debtor)
l1
(name of creditor), of
.s~~~.oe.~OUa.TOWN
.... S~S~~TOO~•. S~S~ •.......... (name of city, town or village), a
creditor in the above matter, hereby appoint ..BARRY:. SM.I.T.H. ••••••
...•.. , of .S~S~~TOON
, to be ~~~ our) general
proxy in the above matter except as to the receipt of dividends,
with (~-wi~fteti~) power to appoint another general proxy in his
&l!'-ae:!' place.
Dated at
Jf\NO~F¥•
this
.S~S~~TQQN
.J.~~3
.~th
.. day of
•••• ,
...... ... . . . ... .. ... .. .. ... .. .. .... ......... ....... ... ......
Witness
...• .:r~~~ oWIiI.T.E. ••
0
0
Witness
Individual Creditor
0
•
o·
0
0
0
0
•
0
0
0
o.
Name of Corporate Creditor
BANK OF YOUR TOWN
·Per aJ\~~~ SMI1H.
Name and Title .of Signing
Officer MANAGER
0
0
0
0
0
0
0
0
•
0
••••
- 7 -
EXHIBIT "B"
INDIVIDUAL CLAIM
PARTIALLY SECURED
FORM 61
Proof of Claim
(Subsection 50.1(1)« paragraphs 51(1) (e) and 66.14(b)
and subsections 81.2(1)« 102(2)« 124(2) and 128(1)
In the matter of the bankruptcy
(-Q:E-~-GpG&a-l:-~-~eeei:-versh±p
-~f-tne:prep~rtyj of .~IM.BLACK .....•........•.
£A~KA.TQQN , .SASK • • • • • • • • • • • • • • • •• (city and
or .
claim of ••••••• 4ij~.~Qijij~Qij ••••••• , creditor.
I,
(name of debtor),
province) and the
• • • • • • • • • • •• (name of creditor), of
•• SAS~liTOOij•• ~4~~, ••••••• (city and province), do hereby certify:
.li~T. J'Oijij~Qij
1. That I am a creditor of the above-named debtor
~-~~-~-am
••
~.-----------------------~~t~·~-~~~~----~-~-~~~---r----------• • • • • • • • • • • • • • • • • • • ••
\ iO:t
,g \..C d\J~
OL. ~.ll:..J.E!J OL • • • • • • • • • •
..
~~~~~~~~~~~~~-~name-o~-crea1t~~1·
\...J..on
2. That I have knowledge of all the circumstances connected
with the claim referred to in this form.
3. That the said debtor was at the date of bankruptcy (~ the
proposal ~ the receivership), namely the •• S~b. day of
~y~~~~••••• , l~~f, and still is indebted to the above-named
creditor (referred to in this form as "the creditor") in the sum
of $.25DDO.OO ••• , as shown by the statement of account (~
affidavit) attached hereto and marked "Schedule A", after
deducting any counterclaims to which the debtor is entitled.
(The attached statement of account or affidavit must specify the
vouchers or other evidence in support of the claim.)
4. (Check and complete appropriate cateaory.)
(
A. UNSECURED CLAIM
That in respect of the said debt, I do not hold any
assets of th~ debtor as security and
(Check appropriate description.)
(
) I do not claim a right to a priority.
(
) I claim a right to a priority under section 136 of
the Bankruptcy and Insolvency Act. (Set out on an
attached schedule details to support priority
claim. )
- 8 -
FORM 61 -- Continued
(x)
B. SECURED CLAIM
That in respect of the said debt, I hold assets of the
debtor valued at $4000.00as security, particulars of
which are as follows:
1985 Chev 1/2 ton Serial #
(Give full particulars of the security. including the
date on which the security was given and the value at
which the creditor assesses the security. and attach a
copy of the security documents.)
(
C. CLAIM BY FARMER, FISHERMAN, OR AQUACULTURIST
That I hereby make a claim under subsection 81.2(1) of
the Bankruptcy and Insolvency Act for the unpaid amo~nt
of $ ....•• (Attach a copy of sales agreement and
delivery documents.)
5. That to the best of my knowledge and belief, I am ~~~
am not ~-~~~ related ~he
debtor within the meaning of section 4 of the Bankruptcy and
Insolvency Act.
~ftameQ-epeQ~~ep-~s~-f~
6. That the following are the payments that I have received
from and the credits that I have allowed to the debtor within the
three months (or. if the creditor and the debtor are related
within the meaning of section 4 of the Bankruptcy and Insolvency
Act. within the 12 months) immediately preceding the date of
bankruptcy:
(Provide details of payments and credits.)
Dated at S~S~~TOOM~S~S~••••••• ~
~ppp~rY••••• , ~~~J
•••••• ~~I}Ei: • VJoi 'tEi •••••• '. • • • • • •
witness
••• this •• 4th. day of
• ••• ••l\.I:"t, .~Qhn&qn ••••••••••••....
Creditor
NOTE: If an affidavit is attached, it must have been sworn to
before a person qualified to ta~e affidavits.
WARNINGS: A trustee may, pursuant to subsection 128(3) of the
Bankruptcy and Insolvency Act, redeem a security on
paYment to the secured creditor of the debt or the
value of the security as assessed, in a proof of
security, by the secured creditor.
- 9 -
"FORM 59
General Proxy
(Paragraphs 51(1) (e) and 66.15(3) (b) and subsection 102(2)
In the matter of the bankruptcy (~ proposal ~ consumer
proposal) . of
, a
bankrupt (~ an insolvent person ~ a consumer debtor)
I (~ We), ••••••••.•.•.•••.•.••••.• (name of creditor), of
..•••.••••••••••.••••.....•.•. (name of city, town or village), a
creditor in the above matter, hereby appoint ••••••••..•.•.....
• ..••• , of .••.•.•••••••..•••••••.•• , to be my (or our) general
proxy in the above matter except as to the receipt of dividends,
with (~without) power to appoint another general proxy in his
or her place.
.
Dated at .•••••••••••.••.••••.•••• this •••••• day of
·.... ......., ....
· . ....... ........ .. .......... ..
Witness
.. ..Individual
. .... .... .... .... .. .. ... .
creditor
Name of Corporate Creditor
· ..... .. ... ......... ..... ... ...
Witness
Per
... .. ..... .... ......... . .
Name and Title of Signing
Officer'
NOTE: Proxy for individual claiM need not be completed
if that individual attends. However if he or she wishes
to have someone else attend then the Proxy would be
completed naming that person.

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