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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 10917
Experience:  30 years as a practising solicitor.
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The question will be Scots Law I think and is based on a property. I

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The question will be Scots Law I think and is based on a property.
I was sequestrated in 2012, I live in Glasgow, and being very honest have avoided my trustee as I cannot make payment to my debts unless I sell my home. My home is subject to ongoing repossession proceedings, since pre sequestration date, which I have been dealing with my self. I have managed to pay all my arrears off with the assistance of my son who is now making the monthly payments. When the case last called in December I got a further continuation till 8th July 2015 to allow payments to be monitored and if regular payments maintained the proceedings will be dropped. As I did not assist with my sequestration my Trustee got extension to my sequestration until 15th April 2015. I had hoped to be in a position to either accumulate sufficient funds or agree monthly payments to settle my debts to the value of my share of the equity in our home but have been unable to do so. My question is, whilst there is ongoing court proceedings to repossess my home is another party ie my Trustee unable to raise another action to try and force me to sell my home to realise my share of the equity. Overall equity is £100,000 approximately.
Terry Hamilton
Submitted: 2 years ago.
Category: Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
Your trustee can't raise an action to sell the house in order to realise your half share of the equity where there are ongoing repossession proceedings unless he has the authority of the court. He can apply for that authority from the sheriff if the repossession proceedings have been unduly delayed. That could be the case here where a repayment schedule was agreed by the heritable creditor.
See section 39(4) of the Bankruptcy (Scotland) Act 1985 which deals with this as follows:
"(4) The following rules shall apply to the sale of any part of the debtor's heritable estate over
which a heritable security is held by a creditor or creditors if the rights of the secured creditor or
creditors are preferable to those of the trustee
(a) the trustee may sell that part only with the concurrence of every such creditor
unless he obtains a sufficiently high price to discharge every such security;
(b) subject to paragraph (c) below, the following acts shall be precluded—
(i) the taking of steps by a creditor to enforce his security over that part after the
trustee has intimated to the creditor that he intends to sell it;
(ii) the commencement by the trustee of the procedure for the sale of that
part after a creditor has intimated to the trustee that he intends to commence
the procedure for its sale;
(c) where the trustee or a creditor has given intimation under paragraph (b) above,
but has unduly delayed in proceeding with the sale, then, if authorised by the sheriff
in the case of intimation under—
(i) sub-paragraph (i) of that paragraph, any creditor to whom intimation has been
given may enforce his security; or
(ii) sub-paragraph (ii) of that paragraph, the trustee may sell that part."
Happy to discuss further.
Please leave a positive response so that I am credited for my time.
JGM, Solicitor
Category: Law
Satisfied Customers: 10917
Experience: 30 years as a practising solicitor.
JGM and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi

Thank you for your very informative answer, In your first para last sentence you mention repayment schedule. There has been no repayment schedule agreed, we actually still have a small amount of arrears but the court continued the case to monitor monthly payments ie normal monthly payments to ensure paid regularly that is each month without mention of repayment of arrears and again no set repayment schedule.

Expert:  JGM replied 2 years ago.
In that case the proceedings are before the court so it's arguable that there is no undue delay.
I think that would have to be looked at in the context of the creditor taking steps to actually repossess the house, ie, if it's the court that's allowing the case to be continued then there can be no undue delay on the part of the creditor so the trustee might have difficulty in persuading the court that there was delay.
I hope that helps.
Customer: replied 2 years ago.

Hi

You recently answered a question which I believe will be attached to this. The trustee has applied to Glasgow Sheriff Court for permission to raise proceedings to try and sell the house. In the first instance is all I need to do is Return Form 07 notifying my intention to defend the action along with the court fee of £90? I do not need to lodge my actual defence at this time?

Regards

Terry Hamilton

Expert:  JGM replied 2 years ago.
No you don't. The court will send you a timetable which will include the last date for lodging defences.
Customer: replied 2 years ago.

thank you once again. VERY HELPFUL.

Expert:  JGM replied 2 years ago.
You're welcome.
Customer: replied 2 years ago.

Hi

You have answered question re my sequestration and the Trustee's ability to force sale of my home. Today I lodge my defence, is there a set form or layout I should use? And should I include section 39(4) of the Bankruptcy (Scotland) Act 1985 within my defence. I look forward to your reply

Regards

Terry Hamilton

Expert:  JGM replied 2 years ago.
Defences are in this format
Sheriffdom of........
Case number:
Defences
in the cause
X Pursuer
Against
Y defender
ANSWERS TO CONDESCENDENCE
1.
2.
3.
Etc
PLEAS IN LAW FOR DEFENDERS
1.
2.
3.
Etc
IN RESPECT WHEREOF
signed
DEFENDER
You have to put in the best defence available to you. You should include section 39(4) on the basis that repossession proceedings are still ongoing by the heritable creditor.
I do recommend that you have a solicitor draft the defences for you. If you get these wrong at this stage it can have an adverse effect on the remainder of the case.
Customer: replied 2 years ago.

I have to lodge defences today and have until 5th June for making adjustments to defences and att that point I will have a Solicitor in place to amend defences.. Are you allowed to recommend a Glasgow solicitor?

Expert:  JGM replied 2 years ago.
No we're not allowed to make recommendations. You can contact the Law Society at www.lawscot.org.uk where there is a Find a Solicitor tool. You can look for a civil court specialist there.
Customer: replied 2 years ago.

Is section 39(4) of the Bankruptcy (Scotland) Act 1985 a plea in law and are you able to recommend any other plea in law?

Expert:  JGM replied 2 years ago.
Yes it will be, and there will have to be supporting averments in the Answers above that. The remaining pleas in law depend on what the Pursuer's pleas in law are. Let me know please.
Customer: replied 2 years ago.

1.The said heritable subjects being a family home in terms of section 40 of the bankruptcy scotland act 1985 and for the first and second defenders having refused to consent to the sale thereof, it is epdient that authority for the sale of the one half pro indiviso share of the said subjects which have been vested in the trustee of the debtor as first craved.

NEVER REFUSED SALE OF BEEN NO CONVERSATION ABUT SELLING

2.the pursuer being trustee on the sequestrated estate of the first named defender and the the trustee and second named defender being pro indiviso proprieters of the subjects, the pursuer is entitled to the division or sale of the subjects as second craved

3. The said heritable subjects being a family home in terms of section 40 of the bankruptcy scotland act 1985 and the first and second defenders having refused to cooperate in the marketing and sale thereof, it is expedient that authority to enter possession of the said subjects is granted as third craved

have never refused to cooperate never talked about selling

4. The pursuer being entiitled in the circumstances condescended upon to enter into possessions of the said subjects, and being further entitled to decree of ejection, decree should be granted as fourth craved.

Expert:  JGM replied 2 years ago.
The Pursuer not being entitled to the orders sought, decree should not be granted as craved.
Customer: replied 2 years ago.

What does quoad ultra denied mean please

Expert:  JGM replied 2 years ago.
Everything else is denied.
Customer: replied 2 years ago.

Finally I hand in my defences to the Civil office at the court is there anything else I need to do or hand in.

Expert:  JGM replied 2 years ago.
You have to intimate a copy to the solicitor for the Pursuer.
Customer: replied 1 year ago.

Hi

You have kindly answered questions previously to my ongoing court action. It is my intention to make financial offer to agree a buy out amount for my share of the house but in the meantime can you help me answer the following,

Pleas in Law

The defenders averments being irrelevant et separatim lacking in specification decree de plano should be granted as craved.

How would this be answered.

Expert:  JGM replied 1 year ago.
You don't need to have a plea in law to counter this one but you do have to make sure that your answers are relevant and disclose a legally stateable defence. The purpose of this plea in law, which is a standard one, is to give the pursuer the option to proceed to debate to argue that your case should not be heard because it is legally inept, ie, irrelevant, or there is not enough to detail given to provide fair notice of what your defence is about.
They have to back this up by intimating a Note of legal arguments a couple of days before the Options Hearing. I suggest you read the court rules to acquaint yourself with the procedure. You can get the Ordinary Cause Rules at www.scotcourts.gov.uk
Customer: replied 1 year ago.

How do I answer or what is the relevance of this

The said heritable subects being a "family home" in terms of section 40 of the Banruptcy (Scotland ) Act 1985 and the first and Second named defenders having refused to consent to the sale thereof, it is expedient that authority for the sale of the one half pro indiviso of the said subjects which have vested in the Trustee of the Debtor is granted as first craved.

Expert:  JGM replied 1 year ago.
The Pursuers not being entitled to sell the property for the reasons averred on Record, decree should not be granted as craved.
Customer: replied 1 year ago.

How do I answer or what is the relevance of this

The pursuer being Trustee on the sequestrated estate of the First named defender and the Trustee and Second Named Defender being being pro indiviso proprietors of the subjects, the Pursuer is entitled to the division or sale of the subjects as second craved.

Also surely my wife has to agree to the sale of the house?

Expert:  JGM replied 1 year ago.
The trustee can ask for division or sale in the same way that any two or more owners can ask a court where one or other doesn't agree to a sale so no your wife doesn't have to agree.
However your wife should be defending on the basis of the "family home" provisions of the Bankruptcy (Scotland) Act 1985 and in particular section 40.
You have to also check that the trustee has complied with the three year time limit in action 39A and that his action is competent. I presume it will be but I just mention this in passing.
Customer: replied 1 year ago.

Section 40 in terms of financial ability to re house?

39A the three year time limit, is this where the pursuer has to claim a debt within 3 years?

In what way would it not be competent

Expert:  JGM replied 1 year ago.
No. Section 40 allowing the sheriff to refuse or delay the order. If you are defending this yourself you must read and know the law:
"40. Power of trustee in relation to the debtor's family home
(1) Before the trustee or the trustee acting under the trust deed sells or disposes of any right or
interest in the debtor's family home he shall
(a) obtain the relevant consent; or
(b) where he is unable to do so, obtain the authority of the [ sheriff ] 3 in accordance with
subsection (2) below.
(2) Where the [&]4 trustee [ or the trustee acting under the trust deed ] 2 requires to obtain the
authority of the [ sheriff ] 5 in terms of subsection (1)(b) above, the [ sheriff ] 5 , after having regard
to all the circumstances of the case, including
(a) the needs and financial resources of the debtor's spouse or former spouse;
[ (aa) the needs and financial resources of the debtor's civil partner or former civil partner;
(b) the needs and financial resources of any child of the family;
(c) the interests of the creditors;
(d) the length of the period during which (whether before or after the relevant date) the
family home was used as a residence by any of the persons referred to in [ paragraphs (a)
to (b) ] 7 above, may refuse to grant the application or may postpone the granting of the
application for such period (not exceeding [ 3 years ] 8 ) as [ he ] 9 may consider reasonable
in the circumstances or may grant the application subject to such conditions as [ he ] 9 may
prescribe.
(3) Subsection (2) above shall apply
(a) to an action for division and sale of the debtor's family home; or
(b) to an action for the purpose of obtaining vacant possession of the debtor's family home,
brought by the [&]4 trustee [ or the trustee acting under the trust deed ] 2 as it applies to an
application under subsection (1)(b) above and, for the purposes of this subsection, any reference
in the said subsection (2) to that granting of the application shall be construed as a reference to the
granting of decree in the action.
Section 39A prohibits the trustee having any further interest in the house after three years unless he takes certain steps to register an interest in the house.
Customer: replied 1 year ago.

is 39A of the bankruptcy act

Expert:  JGM replied 1 year ago.
Yes.
Customer: replied 1 year ago.

Good morning,

The main basis of my defence will be based on financial offer to my trustee but also need to argue on the below

The First and second Defender craves the court,

To deny the pursuer, in terms of section 40 of the Bankruptcy (Scotland) Act 1985 (a) and (b) the right to sell or otherwise dispose of the one half pro indiviso interest in the heritable subects known as and forming 3 Alexandra Park Kirkintilloch Glasgow g66 5BH and registered in the Land register of Scotland under title number GLA109974, which interest in the subjects has vested in the Pursuer as Trustee on the sequestrated estate of the debtor. The pursuer has taken no account of the Second defenders financial resources or needs.

I am unsure as to relevance of " (d) the length of the period during which (whether before or after the relevant date) the
family home was used as a residence by any of the persons referred to in [ paragraphs (a)

Expert:  JGM replied 1 year ago.
1. An offer made in settlement is not a relevant defence unless it satisfies the debt in full. An offer in instalments, for example, is not a defence.
2. You don't have craves in defences unless you're making a counterclaim. You only have Answers and Pleas in Law.
3. I would imagine your defence is restricted to a family home defence. If your wife has lived there for ages, if there are children, etc etc. your wife at least has to take direct legal advice on this. I would counsel against trying to defend this personally. It is too important.
Customer: replied 1 year ago.

My thanks for your assistance, defences lodged so here's hoping I am successful.

Regards

Terry Hamilton

Expert:  JGM replied 1 year ago.
You're welcome.
Customer: replied 1 year ago.

Good morning,

15/6/2015 is the last day for intimating, together with your grounds, a note of any preliminary pleas

Could you please explain what it means by preliminary pleas. Is there a set format for this.

Expert:  JGM replied 1 year ago.
A preliminary plea is a plea in law which attaches the legal basis of the opponent's case, usually on grounds of relevancy or specification.
If a party intends to do this they have to lodge a Note of Basis of Preliminary Plea outlining the legal argument they intend to take.
Customer: replied 1 year ago.

If, as I do, intend to reach financial settlement with the pursuer is there a plea in law applicable to this to lodge as my preliminary plea.

Expert:  JGM replied 1 year ago.
No. A settlement is nothing to do with the pleadings in the case.
Customer: replied 1 year ago.

If I do not lodge a preliminary plea today I assume then options hearing due for the 19/6 still goes ahead based on the defences I have lodged.

Expert:  JGM replied 1 year ago.
Yes.
Customer: replied 1 year ago.

Thank you for your help

Expert:  JGM replied 1 year ago.
You're welcome.
Customer: replied 1 year ago.

I have been served Form G7 Form of intimation of Motion and Form G9, this is a motion for Summary decree. The Form G7 has section, "Last date for Lodging Notice of opposition: 30th June 2015. As this date is the date on the papers served on me then am I correct in saying that this is the date that I and the courts will work to for me lodging notice of opposition. I ask this as the pursuers solicitors had in correspondence by email stated the date was 17th June 2015. Although the 17th may have been the date they intended surely if papers served state 30th June then the 30th is the correct date.

Expert:  JGM replied 1 year ago.
I would not take that risk. The norm is that the last date for opposition is seven days from service. The date they've put on the motion is clearly an error and you don't know what they've put on the papers they've sent to court.
Customer: replied 1 year ago.

Hi

I am lodging form G9 notice of opposition to motion of Summary Decree.
It states Notice of opposition to Motion by (1)
to(2)
by(3)
on (4)

Please advise what I should insert at these points

Expert:  JGM replied 1 year ago.
1 is you
2 is the other solicitors
3 is "by fax transmission to (number)
4 is the date

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