Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
So I understand correctly your partner has used with permission a credit card belonging to his ex providing he repays what he spends on the car. Is this correct please?
Yes. the card was given to him to use as he had a limited source of income. she then had the statements going to his address in her name, and asked him to pay the monthly instalment to the bank.
Thanks. If the account is in her name she is quite entitled should she wish to allow your partner or in deed anyone she wishes to use the card and whatever arrangements they come to in respect of payment on the account is entirely up to them. There is no offence in this respect. However what may not be ideal from your and your partners point of view is the account being registered to your address because this could create a record that his ex lives at the property which may not be desirable however it is probably not a significant issue. He may like to confirm that his address is just being used as a correspondence address for the account but that the account itself is registered to her address.
Is there anything above I can clarify for you?
I was aware that the owner of the card is liable to pay it back and not the person to whom she gives the card to for use.
that is absolutely correct. she is the person that is liable to repay the account however there is nothing stopping her coming to an agreement or arrangement with someone else that they pay the account on her behalf. However, if that person fails to pay the account it is her that the card provider would pursue and not the third party (here your partner). there is no contract between the lender and your partner and no basis for the lender to pursue your partner. They would pursue your partner's ex for any arrears on the account or missed payments
Is there anything above I can clarify or assist you with any further?
in any case the problem that we are facing now is that she apparently paid the card off in 2009 when she took out a loan and had him sign an agreement to pay the loan off. the loan is solely in her name. my partner went bankrupt in 2011 and she was aware of this but he did not include her on the list at the time of bankruptcy, as he had no loan agreement and she was harassing him every month for a payment. he had continued to pay her every month during bankruptcy., up until march this year. she is now taking him to court for the remainder of the balance. We have responded to the court to ask them to strike out the claim, as the loan was there during bankruptcy and he paid back most of what he owed and are now waiting for the court date. What I would like to know is what evidence can we provide to the judge on the hearing?
if your partner can demonstrate that he did make payments under the loan during the period of his bankruptcy, your partner can consider a defence against his ex-partner's claim on the basis that the failure to include the debt in his bankruptcy was a genuine oversight and payments were and can be demonstrated to have been made in accordance with his legal obligations during the period of his bankruptcy and on the basis that the loan was unsecured and entered into prior to his bankruptcy, the same is no longer payable following his discharge from bankruptcy. your partner will need to give consideration to producing evidence that payments were made under the loan during the period of his bankruptcy.
Does the above answer all your questions or is there anything I can clarify or help you with any further?
Unfortunnetly my partner had kept no receipts of the payments going into her account, however she has said that she could prove this. What is the likely outcome? What will the judge say on this?
did he pay in cash?
which is trustee in bankruptcy know anything of the payments made to her?
he paid it through her bank account over the counter. The official receiver is aware that he had been making these payments, and has not come back to us with any questions.
Thanks. On that basis your partner may wish to obtain confirmation from his ex-trustee in bankruptcy of the arrangement with his ex-partner in terms of paying the loan and based upon what you say, there will be evidence of the payments on her bank account statement. On the basis your partner can obtain confirmation as above from his ex-trustee in bankruptcy he would be able to provide a statement to the court both from his ex-trustee in bankruptcy on the arrangement and his own statement that payments of £x were made directly into the claimant's bank account each month and that he puts his ex-partner to strict proof by way of production of bank accounts for the relevant account during the period in question in the event that she denies that this is the case. This should be sufficient to convince a judge but such payments were made
is there anything else I can help you with?
She can prove that he was making payments during the period of bankruptcy, and has admitted to the court that he did pay her during bankruptcy.The official receiver was only aware of these payments when my partner stopped paying her in March this year. She is only claiming the remainder of the balance of the loan which is still owed for £3,000.
If she admits the payments then there is no issue of evidence needed. Your partners defence would appear to therefore be as above namely that the failure to include the debt in his bankruptcy was a genuine oversight and payments were and can be demonstrated to have been made in accordance with his legal obligations during the period of his bankruptcy and on the basis that the loan was unsecured and entered into prior to his bankruptcy, the same is no longer payable following his discharge from bankruptcy.
unsecured debts incurred prior to bankruptcy as a starting point cannot be claimed following discharge from bankruptcy
I am aware of this, but in this case can she not argue the fact that he acknowledged the debt and was still paying her during bankruptcy? therefore she is able to continue to claim money from him in order to clear the balance?
no because it is quite normal and indeed required for individuals who made bankrupt to continue to pay towards debts owed so far as they are able during the period of bankruptcy. This is what would have been required had your partner included the debt in his statement of creditors and the payments would have been managed by his trustee in bankruptcy. It is at the point where bankruptcy is discharged that the various debts are written off. providing he has made no further payments following his discharge from bankruptcy, I cannot see that this argument is open to her
thanks, but he was making payments after his discharge, as he was not aware of his discharge which was in Jan 2012. From Jan 2011 until March 2013 he was paying her as she was harassing for payment?
Did he not receive notiication of his discharge?
No he didnt
Do you know why not?
I understand that the official receiver who dealt with his bankruptcy has left and somebody else has taken over now. it could also be that he lived at another address at the time of bankruptcy
Presumably the receiver did not write to confirm - this is not uncommon.
OK in that case he would appear to have given himself a significant problem. Unless he can show that the further payments were made under duress - i.e. under fear for his own safety - they could amount to an acknowledgement of the debt which can reestablish liablility for the same. In the assumption that he cannot show duress then his only argument available to him is that the payments do not amount to an acknowledgement of the debt and were only made as a gesture of good will on his part and on the basis that he was operating under the mistaken belief that he had not yet been discharged from bankruptcy. Whether or not the judge will buy this is uncertain but his failure to include the debt in the official bankruptcy statement so that it was managed by the trustee and his lack of awareness as to his status in terms of discharge have conspired together to leave him in a less than ideal position. However he may as well attempt the above defence as the alternative is to simply capitulate and pay what she demands.
Thanks. i don't think he has proof of harassment until he stopped paying her, to which she threatened to send over some people to have a word with him. the police were informed of this and a crime ref given. however the official receiver did not explain to him who to pay and what not to pay, or when he was discharged and has also provided him false advice on other debts such as not paying for a court fine, which we are also having to deal with now
It could be worth mentioning the harassment and crime reference number as it is possible for a judge to consider such behaviour in respect of any judgement under the provisions of the Protection Against Harrassment Act and other legislation.
The principle issues will likely turn on whether the judge accepts the above defences however which will not be known until judgement is given.
Thanks. What paper work should he take to court on the day?
is there any way i can see the text messages that were sent to my partner as this would be proof that she was harassing him for money?
sorry for the delay in reverting to you, one of my colleagues inadvertently locked the thread preventing me from responding…
Your partner will need to submit a defence assuming he is not already done so to his ex-partner's claims and he will need to do so within 14 days of service of the claim form unless he acknowledges receipt which case he can have up to 28 days to do so. A hearing date will be set and your partner may wish to consider taking with him a copy of the bankruptcy order and if he has one, confirmation of the date of discharge from bankruptcy as well as a copy of any crime reference report he has in relation to the harassment.
In terms of the text messages, if your partner has deleted these from his phone they may only be recoverable by making a request to his service provider who may or may not have stored the same on their servers. Obviously if he still has them on his phone, in the assumption the phone is relatively modern, they can usually be printed by connecting the phone to a computer
he has already sent off the defence and is just waiting a court hearing. i don't think the phone company will have a record as they usually delete them after a few days, and these texts messages had been going on from 2010! a copy of the bankruptcy has been sent to the court.
we can prove that he had been in touch with her, when replying to her text messages, but not the content which is sad, because i did see them so can i be a witness to this. can i write a statement in his defence?
telecoms companies normally have to retain text messages for up to a year under anti-terror legislation that the do not have to disclose them to their customers and it is unlikely they will have text messages going beyond a year in any event but one can ask. with regards to text messages, from what you say, it is unlikely be able to do much more than confirm abusive text messages were sent and over what period and refer to the crime reference number. You can provide a witness statement however due to your relationship to your partner, this witness statement will not be considered independent and therefore have limited value to some degree
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