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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11751
Experience:  30 years as a practising solicitor.
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MY HUSBAND SIGNED OUR HOME OVER TO ME IN MARCH 2008.WE DIVORCED

Resolved Question:

MY HUSBAND SIGNED OUR HOME OVER TO ME IN MARCH 2008.WE DIVORCED IN JAN 2009.
HE WENT BANKRUPT IN 2011. I HAVE NOW BEEN SENT A COURT OF SESSIONS
CITATION TO HAVE THE PROPERTY RETURNED TO THE SEQUESTRATED ESTATE.
I CAN'T AFFORD A LAWYER AND HAVE FELL SHORT OF LEGAL AID.I TOOK OUT A NEW
MORTGAGE IN 2009 ON THE PROPERTY FOR MORE THAN PREVIOUS ONE WHICH I HAVE PAID
FOR FIVE YEARS.THEY ARE CLAIMING EQUITY WAS 75,000 AT THAT TIME.I DONT KNOW WHAT I SHOULD DO.THIS JUST SEEMS WRONG,CAN YOU HELP.
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.
The case here will be based on an averment that the house was transferred to you within five years of his bankruptcy so that it would not be available to your husbands creditors in the event of his bankruptcy. In other word it was an avoidance transaction designed to defeat creditors. You have to establish that that wasn't the case and you will have to enter appearance in and defend this court action.
You will have to see a solicitor about this; you have no choice as you can't deal with a Court of Session action on your own nor will the CAB know how to deal with this.
However, there is every chance that you would, with legal help, be able to defend the action successfully. In order to succeed in their action the pursuer would have to prove that your husband was insolvent at the time the property was transferred to you, not just that he is bankrupt now. At the time of the transfer your husband ought to have signed a declaration of solvency stating that he was not bankrupt and that his assets exceeded his liabilities.
Given this, and the passage of time, there is every chance that you could succeed assuming your husband's affairs were not insolvent at the time of the transfer.
However, I do have to stress, a Court of Session summons has to be dealt with properly and you must see a solicitor immediately.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 3 years ago.

If he was insolvent at the time he transferred it,do i have any defence? I don't know what

state his finances were in as we were living apart.he lived with his then partner now wife. what will happen if it gets returned to the sequestrated estate,and they don't get the amount of

money they have stated on this citation.do they pay o fmy mortgage and then divide the

remainder in two,regardless of how much it's sold for.

Expert:  JGM replied 3 years ago.
If he was insolvent at the time then the trustee can ask the court to reverse the transaction. However it would not really be possible to do so given that you have subsequently mortgaged the property and you have identified that problem yourself. If they were absolutely successful, the property would have to be sold, the mortgage paid off, one half of value at the time of the transfer paid to the trustee, or as much as can be towards that value, and the balance, if any, to you.
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