home repossession from Lowell portfolio for a disputed statute barred debt

[PRETTYNICOLA]

Hi everyone!
I need some serious advice here because I don't seem to get anywhere with my legal adviser.
I am not bankrupt and I own my house fully which was bought in 2002: I paid for the initial deposit by myself, and till date I am paying all mortgage payment as well as utility bills and council tax though my husband name's appears because he is head of the family while I was the bread winner at the time while he was a student. The law firm that acted on my behalf in 2002 also advised me to draw a deed of trust in favour of my children which was done.
My husband was made bankrupt by a debt collection agency called Lowell Portfolio in his absence for a so called debt from vodaphone of less than a thousand pounds in 2012 and are trying their best to sell the house to pay that deb,t, adding their own fees to it which of course runs into ten of thousand of pounds...
He tried to get the bankruptcy order cancelled by stating that the debt was statute barred and that in any case he never owed vodaphone and had never agreed to acknowledge debt or make any payment, the lawyers acting for lowell portfolio made life very difficult and played fully on his lack of knowledge of court procedures. There are now trustees in bankruptcy.
Later on, while I was in court with my husband, the debt collectors' lawyer and the trustees' somehow entered the courtroom without us being called and asked the judge to make an order for sale of my home, claiming that my husband owns half of it because his name appears on the Land register, without allowing me to have a say in the matter.
After formal complaint in writing to the court, another judge suspended that order for sale.
the two successive lawyer that we have instructed do not seems to know what to do about the matter and have withdraw on each occasion at the eve of a court hearing leaving us with no rep on each occasion. it looks like everybody is afraid to stand against this abuse.
in March the trustees in bakruptcy sent a warrant for the repossession of my home but in the county court the judge suspended the order on hearing my lawyer stating that I and my children are living there and that I was in fact the owner.
Before withdrawing, my lawyer started a appeal case in the High court against the decision made in my husband's bankruptcy matter for the sale of the house but I am not convinced it was the right course of action or the right court because I have instructed him to affirm my full right on my house not to fight my husband's bankruptcy matter.
What am I to do now, I do not want to sell my home as I am not bankrupt and the whole matter looks like a sham to me?
Many thanks.

[Openlaw15]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

@des8 @Kati @Diana M [MENTION=48934]Debt Camel[/MENTION]

Des8, I tagged you for the 'trust', trustee, and other property matters. Kati I tagged you to signpost to others and or have an opinion yourself. Di, I tagged you because there's a mortgage and possession matter. I tagged Debt Camel because of the 'bankruptcy matter.

[Openlaw15]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

Hi everyone!
I need some serious advice here because I don't seem to get anywhere with my legal adviser.
I am not bankrupt and I own my house fully which was bought in 2002: I paid for the initial deposit by myself, and till date I am paying all mortgage payment as well as utility bills and council tax though my husband name's appears because he is head of the family while I was the bread winner at the time while he was a student. The law firm that acted on my behalf in 2002 also advised me to draw a deed of trust in favour of my children which was done.
My husband was made bankrupt by a debt collection agency called Lowell Portfolio in his absence for a so called debt from vodaphone of less than a thousand pounds in 2012 and are trying their best to sell the house to pay that deb,t, adding their own fees to it which of course runs into ten of thousand of pounds...
He tried to get the bankruptcy order cancelled by stating that the debt was statute barred and that in any case he never owed vodaphone and had never agreed to acknowledge debt or make any payment, the lawyers acting for lowell portfolio made life very difficult and played fully on his lack of knowledge of court procedures. There are now trustees in bankruptcy.
Later on, while I was in court with my husband, the debt collectors' lawyer and the trustees' somehow entered the courtroom without us being called and asked the judge to make an order for sale of my home, claiming that my husband owns half of it because his name appears on the Land register, without allowing me to have a say in the matter.
After formal complaint in writing to the court, another judge suspended that order for sale.
the two successive lawyer that we have instructed do not seems to know what to do about the matter and have withdraw on each occasion at the eve of a court hearing leaving us with no rep on each occasion. it looks like everybody is afraid to stand against this abuse.
in March the trustees in bakruptcy sent a warrant for the repossession of my home but in the county court the judge suspended the order on hearing my lawyer stating that I and my children are living there and that I was in fact the owner.
Before withdrawing, my lawyer started a appeal case in the High court against the decision made in my husband's bankruptcy matter for the sale of the house but I am not convinced it was the right course of action or the right court because I have instructed him to affirm my full right on my house not to fight my husband's bankruptcy matter.
What am I to do now, I do not want to sell my home as I am not bankrupt and the whole matter looks like a sham to me?
Many thanks.

I had written the previous (now amended below) on the assumption the property was not in your name. My apologies. It is rather a complex matter/s anyway. This is not the case, so the property rights are by deed for you (legal interest), and by beneficial rights for your husband. Either way you have ownership rights so your lawyer was right in that advice at the warrant for repossession hearing. Your rights should have been watertight and the trustees may have abused their powers so this is why the other lawyer was going to the High Court against the Trustee to remove his power for Sale. I think there is an appeal locally either through the last court you attended or the County Court level itself. So, I don't agree with the lawyer who is going to the High Court. High Court = more costs if it goes pear-shaped.

Your husband's property rights (discretionary)

The property is not in your husband's name so his main rights in property law are beneficial rights/ ownership (ie not by deed), which are therefore discretionary and recognised through the courts. He'll have these because he's married and contributing to family/ household bills I assume? Why is the property not in joint names (ie joint ownership)? Did your husband put a restriction on the property's land register, if it (the property) is registered. As you've been paying the mortgage and paid its initial deposit I think his beneficial ownership is more like 25% ownership at best.

You likely have 50% of the property or more through actual ownership, so the other 50% or less (ie 25%) is possibly owned by your husband. The trustee should have proved your husband has ownership as beneficial rights (at equity) are not straight forward. So, only these shares at best should have been your husband's interest (not water-tight), in the property. This is the total amount the Trustees should have claimed an interest in having proved them etc. However said claim should never have not been certain at all as you're the legal owner for all intents and purposes of the term 'legal ownership.'

Your husband/ bankruptcy

The bankruptcy should only affect your husband's 50% or less. It doesn't matter whether his name is not on the property deeds, his beneficial rights are discretionary, so should have been protected if the Trustee relies on them. Were you offered your husband's 50% 'beneficial interest' in the property by the Receiver or Trustee during the period of bankruptcy? This is procedure under insolvency practice (ie technical manual). It's a little complicated when his rights are only discretionary to offer his estate (property interest) that in law he doesn't own, but in equity (court rules), he only 'may.' If the Trustees did not claim your house after 3 years of the bankruptcy discharge date, as far as am aware the property should be returned to the bankrupt/ your husband: Enterprise Act 2002 amended Insolvency Act 1986 (protects domestic property), and that's the end of the matter. The charge that the creditor or the Trustee has in my view is legally unsafe, and more likely undue process (abusing 'government powers). The trustee's role is statutory so it's potentially an abuse of power by the state (government). There usually shouldn't be any claims unless any were protected by a charge on the property. This sounds like abuse of process to me the more I think about your facts.

Court Order for Sale

A suspended warrant does not mean the end of your troubles. Property law, Sale, Repossession is such a grey area. Only a bank, a secure creditor, has 'real' (property, or proprietary rights) rights to sell a property by law. A bank is said to technically be an owner of property (legal owner), and the person paying the mortgage is beneficial owner. Only a Trustee or Creditor with a charge on the property can request a sale based on the judge's court order. For some reason, likely owing to the unfair court costs, the debt has massively increased and this is weighing against the property's equity.

Legal Costs

Costs thus far - you require a financial breakdown of these costs - as in my view, they're grossly unfair, and only a court has the power to do that. The usual rule for costs is that the costs follow the event, ie if the party wins then then costs are warded to them. The exceptions are: bad conduct by either of the parties results in no costs order being made. So there is an issue to challenge with lawyer costs as they must be proportionate (fair), and costs are at the judge's discretion.

Remedy

You simply need to have this judgement overturned, the matter relating to the 'warranty for possession,' so the lawyer is probably right to take action against the Trustee who has got an Order for Sale, albeit suspended. The problem is you need to have this Sale removed not just suspended. I believe you have a remedy at County Court level and no need to go to the High Court (as stated above), as this is very much an abuse of power. The County Court is a finding of fact court and can hear some appeals, whereas the High Court is an Appeal Court against the Trustee. You need to have the outrageous costs order (lawyers fees) re-examined for a start at the County Court, as they're so grossly unfair.

[Crazy council]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

Hi

Horrendous situation to be in fighting over your property over something like that. ( happened to me, bankrupted for none exsitant council tax ). Some of the following details wioll be usefull

House

total Debt ( morgagee pluss secured debt ) ( not including bankruptcy stuff )
Total asset in property
Full details of the child trust
Full details of the implied ownership of you and hubby

The debt

As well as vodaphone, were ther any others added on
List costs so far if possible
Official recive3r/court
Trustees fees and disbursments
Name of trustee

As a basic,

There are rules around costs and actions for trustees, depending on the answers to above, will depend on hoiw much control you get.
[MENTION=77627]Openlaw15[/MENTION] i think most of this stuff is determined using the statements of insolvency practice ( rules for trustees ) and the trustees code of ethics. Each trustee signs up to a regulator and agrees there terms.

cipfas http://www.icaew.com/en/technical/in...e-sips-england

and its sip 9 that deals with charges ( there are a number of variants of 9 , time depenmdant, )

[Diana M]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

Your poor thing. You are being bullied pure and simple.

I'm sorry to see that your previous legal advisors haven't been much help from what you say. It seems the only person who has been supportive is the Judge who dismissed the Order for Sale application (or is it suspended?).

I gather that your husband is trying to get the bankruptcy annulled. What is the current situation with that? If the alleged debt was SB at the time of the BR then there should be a question mark over whether it should have happened. Were there other creditors at the time also baying for his blood?

I gather he's failed to get his BR overturned on his first attempt so is now appealing to the High Court. All this has added thousands of pounds in legal costs to a situation which started out as a £1k disputed debt for a mobile phone contract which he says never existed (did Lowells obtain a CCJ for it?). It's stories like this which give the legal profession a bad name.

If his name is on the property would there have been enough equity in the house to pay the creditors at the time of the BR? I'm not suggesting that's what should have happened, I'm trying to establish whether he was 'technically bankrupt' when the order was made (i.e. did he have more assets than his debts).

I presume he's sill got solicitors instructed but it may not be wise (potential conflict of interest) for you both to instruct the same legal team.

Is there a hearing date in the diary for anything or is there time to look at this problem holistically?

Di

[Debt Camel]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

There is a lot about this story that seems to be missing.

How can lowells be applying for an order for sale if they have made your husband bankrupt?

Had they already obtained a CCJ and a charge over the house? If so why did your husband not dispute the CCJ?

Before withdrawing, my lawyer started a appeal case in the High court against the decision made in my husband's bankruptcy matter for the sale of the house but I am not convinced it was the right course of action or the right court because I have instructed him to affirm my full right on my house not to fight my husband's bankruptcy matter.

Has your solicitor withdrawn from representing you? Why?

[Openlaw15]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

There is a lot about this story that seems to be missing.

How can lowells be applying for an order for sale if they have made your husband bankrupt?

Had they already obtained a CCJ and a charge over the house? If so why did your husband not dispute the CCJ?



Has your solicitor withdrawn from representing you? Why?

The Trustee is likely to have used his powers for a Sale. The reason for this likely owes to the Trustee/ Official receiver using their powers to put a charge on the property (in their own statutory right) against the husband's beneficial interest to his estate, before the bankruptcy was discharged. The Trustee is holding the husband's estate on trust so has the power to dispose of the property as he wishes.

[Openlaw15]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

Hi

Horrendous situation to be in fighting over your property over something like that. ( happened to me, bankrupted for none exsitant council tax ). Some of the following details wioll be usefull

House

total Debt ( morgagee pluss secured debt ) ( not including bankruptcy stuff )
Total asset in property
Full details of the child trust
Full details of the implied ownership of you and hubby

The debt

As well as vodaphone, were ther any others added on
List costs so far if possible
Official recive3r/court
Trustees fees and disbursments
Name of trustee

As a basic,

There are rules around costs and actions for trustees, depending on the answers to above, will depend on hoiw much control you get.
@Openlaw15 i think most of this stuff is determined using the statements of insolvency practice ( rules for trustees ) and the trustees code of ethics. Each trustee signs up to a regulator and agrees there terms.

cipfas http://www.icaew.com/en/technical/in...e-sips-england

and its sip 9 that deals with charges ( there are a number of variants of 9 , time depenmdant, )

Actions against Trustees/ Receivers are at the High Court (Court of first instance, or Appeal jurisdiction), as far as I understand. I still think there's a local remedy for the OP against the warrant for possession as County Courts are Fact Finding Court whereas the High Court is an Appellate court, on these facts. Trustees have the Insolvency technical manuals to follow, as this is procedure for using the law under Insolvency Act 1986. If they have abused the procedure they've broken the law in the civil sense. So, there could be a high court action for judicial review, appeal the County Court decision on a point of law at the High Court.

[Crazy council]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

Actions against Trustees/ Receivers are at the High Court (Court of first instance, or Appeal jurisdiction), as far as I understand.

My experience was 2007-13 ( bk 07, possession 09, eviction 11, Won back feb 2013 )

The rules around trustees changed ( case law ) around 2009, and gives the creditors ( the lady would be a creditor if she owns half the prpoperty ) more say . Also, if the hubby has any asset, after the morgagee, creditors and initial court costs ( court and OR ), then the ammount they have left, is classed as a creditors.

The above makes a difference if you ( the bankrupt or the woman ) are the largest creditor of the estate.

Also, the ammount of the trustees charges ( Below 10K aor above 10K ) mean that they have to be detailed differently.
One part to watch for, is you can ealsy challange there hourly rates, the changes in 2009 went along the lines that, the trustees has to show value to the administration of the estate, relative to there hourly charging rates.

I did an application at the court to challenge there fees and charges

[Debt Camel]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

The Trustee is likely to have used his powers for a Sale. The reason for this likely owes to the Trustee/ Official receiver using their powers to put a charge on the property (in their own statutory right) against the husband's beneficial interest to his estate, before the bankruptcy was discharged. The Trustee is holding the husband's estate on trust so has the power to dispose of the property as he wishes.

Well obviously.... but none of that explains why there are lawyers for the debt collector involved in the court proceedings... there is something else going on here...

[Openlaw15]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

My experience was 2007-13 ( bk 07, possession 09, eviction 11, Won back feb 2013 )

The rules around trustees changed ( case law ) around 2009, and gives the creditors ( the lady would be a creditor if she owns half the prpoperty ) more say . Also, if the hubby has any asset, after the morgagee, creditors and initial court costs ( court and OR ), then the ammount they have left, is classed as a creditors.

The above makes a difference if you ( the bankrupt or the woman ) are the largest creditor of the estate.

Also, the ammount of the trustees charges ( Below 10K aor above 10K ) mean that they have to be detailed differently.
One part to watch for, is you can ealsy challange there hourly rates, the changes in 2009 went along the lines that, the trustees has to show value to the administration of the estate, relative to there hourly charging rates.

I did an application at the court to challenge there fees and charges

The trustee in bankruptcy (to use their formal tile), essentially acquire any rights the bankrupt had and no more. This is the problem the Op's husband didn't even own the property in the literal sense, so the trustee in bankruptcy would be said to have abuse their powers under the Insolvency Act 1986.

[Openlaw15]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

Well obviously.... but none of that explains why there are lawyers for the debt collector involved in the court proceedings... there is something else going on here...

The lawyer for the debt collector would be joined as claimant probably, and the lawyers for the Op/ her husband would be lawyers joined for the defence. The unscrupulous debt collector wants to make sure they get their slice of the pie so are using a lawyer to pile on the pressure. The OP's lawyer likely recognised this unfairness, so wanted to appeal to the High Court to limit the powers of the Trustee in Bankruptcy. The debt collector's lawyer sounds to me like he/ they have unduely influenced said Trustee's public (statutory) position.

[Crazy council]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

Well obviously.... but none of that explains why there are lawyers for the debt collector involved in the court proceedings... there is something else going on here...

I was wandering the same. Possibly could be partitioning creditors picked the trustee if they was the bigist creditor. And then the trustee used them as solisitors in return.
[MENTION=77627]Openlaw15[/MENTION] the action against the property is part of the administration. Of the estate not the origional bk action. And there are administration rules that can be challanged a lot Easter than appealing the bk order

[Openlaw15]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

I was wandering the same. Possibly could be partitioning creditors picked the trustee if they was the bigist creditor. And then the trustee used them as solisitors in return.
@Openlaw15 the action against the property is part of the administration. Of the estate not the origional bk action. And there are administration rules that can be challanged a lot Easter than appealing the bk order

CC, please explain.

What do you mean not part of the original bankruptcy order?

[Crazy council]

Re: home repossession from Lowell portfolio for a disputed statute barred debt

I made the same mistake, fighting over the BK, because it was false, instead of keeping an eye on were the administration was going.

The administration of the estate, ( from when the trustees involved formally), start a process ( at the lower courts ) , and this process ( the ins and outs of it ) are detailed in the SIPs, are basicaly the rules they have to act by. One of them ( cant remember witch, will check tomorrow ) , set out the rules for the relationships between trustees/creditors/solisitors, one sets out the financial rules around charging agisnt any remaining asset, At any time during the administration, you can challange or request a judge consider a part at the lower court.

Basically, if the Bk has asset in there estate, after the mortgagee+creditors+OR fees+initial court and solicitors costs ( for the bankruptcy order only ), then they have some level of control with the trustees and the administration. The more asset the BK has, the more say they have.

There is also the consideration, of who is the biggest creditor if the mortgage company were not part of the bankruptcy action. In some cases, this can be the bankrupt ( due to remaing asset in the estate )

A real lot depends on how much asset is left in the initial estate, before the trustees fees