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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33821
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Please can you assist. Background - I divorced

Customer Question

Hello
Please can you assist.
Background - I divorced in Jan 2013. Finances were sorted out without the courts. They was no NET £ figure in the financial pot, only debt. I agreed to take most of the debt in exchange that the family home be signed over to myself, deeds and equity. The agreement was weighted heavily in favor of my ex-wife. I also have been solely responsible for raising our daughter since then. The house was signed over to me in February of 2014, and I have very little to do with my ex. Life and finances have been separate since see moved out in August of 2012.
Fast Forward to Oct 2015. I'd received a letter from a Trustee in bankruptcy informing me that my ex-wife has been made bankrupt and asks the circumstances around the transfer of her interest of the family home in Feb 2014. I responded within 24hrs with the information they have asked for by email and received conformation that it had been received the same day.
I then did some research to discover that they can claim my property for the Trustees Estate, initially I just thought it was to make sure my ex hadn’t defrauded the bankruptcy. Obviously at this stage I’m feeling the stress and have grown deeply concerned. I’d put my life on hold, and waited for a response. Within my research I discovered that the Trustee has 28 days to make a claim. 40 days passed without hearing back, so I assumed the matter closed. Unfortunately this wasn’t the case and on Christmas Eve 2015 I received a second letter asking for more information some 60 days after the first. I have again replied and I’m again back in limbo of sleepiness nights and worry whilst they ponder they next response.
I personally don’t believe the trustee has any claim against my house as the property was transferred in good faith, part of a family based agreement on finances after divorce, for value and I did not know about bankruptcy order against my ex.
I believe insolvency procedure hasn't been followed with regards ***** ***** time period, as I assume its there to protect the third party from prolonged stress and mantel health. I believe the Trustee to be professionally incompetent, in not following there own guidelines. Please can you provide any advise on how I should proceed.
Submitted: 1 year ago.
Category: Law
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is ***** ***** do my best to help you but I need some further information first.How much is the house worth and how much is outstanding on the mortgage and what was the extent of the debts that you took on?
Customer: replied 1 year ago.
Hello ClareIt was worth 155k when we spilt (2012), with 141k mortgage owning (this inc about 5k early redemption) and 160k when the transfer happened with 130k owing (2014). Debt was 30k, I took responsibility for 25k with my ex 5k in 2012. I have paid all mortgage since Aug 2012 and responsible for reducing the mortgage. She also took a car worth 6k and all her pension (good nhs paying in for 15 years). I kept a car worth 2k and had no pension.
Expert:  Clare replied 1 year ago.
Please do not lie awake.
The Trustee is simply following through the process and ensuring that you and your ex dis not "conspire" to evade creditors.
The figures you give make it claim that this was in fact a fair settlement - weighted towards your ex if anyone.
It is not a swift process sadly - but the eventual outcome is that there is no claim against your home
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 1 year ago.
Hi ClairThanks again for your response. But it doesn't really answer my question, as I'm already confident they don't have a claim.My issues is that I don't believe they are following the letter of the law, and in fact the process of any claim should be within 28 days and we're way beyond that.Below is taken directly from the insolvency website with regards to 'After Acquired Property".----------9. What if the bankrupt no longer has the property in his possession?Where the property in question has been disposed of to a third party by the bankrupt, either before or despite his/her receiving notice of the trustee’s claim, the trustee has 28 days from the date of becoming aware of the third party’s name and address to claim the property on behalf of the estate. This should be done using form ASTCAA. However, if the third party acquired the property in good faith, for value and without having notice of the bankruptcy order, the trustee has no remedy against him/her or against anyone else the third party may have passed the property onto. In these circumstances, the trustee can request the bankrupt to pay to the estate the proceeds of sale or, if this is not possible, a suspension of the bankrupt’s discharge might be sought until such time as the bankrupt has repaid the value of the property to the estate.------------I understand that the trustee can request more time from the courts, with good reason. Processing and admin isn't one of them. Usually its if the process is being held up by the third party (me), and it clearly hasn't.So given that the above is true, I'm asking if you believe I should point this out and request that they cease all communication, or do I carry on co-operating. I'm concern is that I have no legal aid, and by co-operating I may actually be weakening my potion.
Expert:  Clare replied 1 year ago.
Hi
I am afraid that that section does not apply where the Transfer has been by way of a Family Court Order .
You do need to continue to co-operate - but you are in no way weakening your position by doing so
Clare
Customer: replied 1 year ago.
Clare, the transfer wasn't a court order, it was a family based agreement between myself and my ex. No courts where involved.
Expert:  Clare replied 1 year ago.
AH
No final financial order sealed by the court?
Clare
Customer: replied 1 year ago.
Thats correct. we don't have a consent order regarding finances. Instead agreeing them between ourselves, which is why its weighted heavily in my ex-wifes favor. I agreed it so she'd move on, as her mental health was affecting our daughter.
Expert:  Clare replied 1 year ago.
I see.Thant changes matters a little - and I am afraid makes you less secure.Were all the debts joint debts and what had the funds been used for?
Customer: replied 1 year ago.
Yes they we're all Material Debts. Cars Hers/Mine, holidays etc.
Expert:  Clare replied 1 year ago.
So all were joint debts relating to provable family spending
Customer: replied 1 year ago.
Thats correct, during the marriage.
Customer: replied 1 year ago.
Wouldn't it be the task of the Trustee to prove otherwise? Which would be impossible for them to do given the time that has passed.
Customer: replied 1 year ago.
And given the 28 days deadline, hasn't there opportunity passed?
Expert:  Clare replied 1 year ago.
Hi
No I am afraid that none of the above is correct.
There is no 28 day limit so far as the matrimonial home is concerned and in fact it is for YOU to prove that that settlement was a fair one and part of that will be proving that the debts were legitimately joint and that accordingly the settlement was a fair one which would have been approved by the court
I am not saying that you are at risk - I am saying that you need to co-operate fully with the Trustee to show that the deal was indeed reasonable
Please ask if you need further details
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33821
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks Clare
Expert:  Clare replied 1 year ago.
Hi
You are welcome - I hope all goes well
Clare
Customer: replied 1 year ago.
Hi Clair.You are indeed correct with your advise, and I now understand that I made the mistake of reviewing information on After-acquired property, rather than Assets disposed of prior to bankruptcy.Continuing my research I'd like to ask you about a passage from the House of Commons library titled 'What assets vest in the trustee in bankruptcy?'The paragraph is, 'The onus of proving insolvency is on the trustee except in relation to an ‘associate’. Where an individual has entered into an undervalue transaction with an associate, it is presumed that the individual was insolvent at the time'. For the purposes of the IA 1986, a person is an “associate of the bankrupt” if they are a spouse, a relative, or the spouse of a relative.Am I an 'associate' The decree absolute was granted by the court over a year before the transfer? I wasn't the spouse a relative, or the spouse of a relative. I was an ex-spouse. So who has the onus of proving insolvency, myself or the trustee?Thanks
Expert:  Clare replied 1 year ago.
You are indeed an associate I am afraidYou may find this article helpfulhttp://www.crippslink.com/index.php?option=com_content&view=article&id=811:property-adjustment-orders-trustee-bankruptcy&catid=81:family&Itemid=611
Customer: replied 1 year ago.
Thanks Clair.Interesting read. In your opinion do you think the Trustee would be interest in court action over 15K equity?
Expert:  Clare replied 1 year ago.
Hi
Difficult call.
If the outline you have given me is basically correct I woudl expect you to be ok!
Clare

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