Expartner going bankrupt - adjudicator wants part of a future bonus from secured loan

[Openlaw15]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

This is a badly mangled description.

The right to this future bonus (if the right exists, and I have said it is not clear that it does) will NOT be because it is after acquired property, instead it will be because it was property which the bankrupt owned at the point of going bankrupt. In which case it would be Long Term Asset and the relevant extract from the OR's manual is what I have already linked to: https://www.insolvencydirect.bis.gov...m%20Assets.htm

Assets do not have to be realised before discharge. It is misleading to suggest that they do. Take a common situation where someone inherits, with the death occurring before bankruptcy or after bankruptcy but before discharge - the inheritance will still go to the OR even if the estate is not distributed for many years.

How can something be property or an asset if it hasn't been converted into property. No, because if the Will has a 'trust' clause where it's safe from the OR

[Debt Camel]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

Jesus Quintana

I understand that [MENTION=77627]Openlaw15[/MENTION] is saying a lot of things that sound sensible to you and that his use of legal jargon may make it sound as though he is correct and that it would be great for you if he is correct.

However he has a history of posting detailed answers here which are just unhelpful because they set off in entirely the wrong direction. Take the following statement:

So unless there is an English law stating that the receiver can claim a future interest for 1) a post bankruptcy asset; 2) the asset has not been realised (ie not realised as property), there simply can be no claim in law, or that law is ultra vires (illegal in the civil sense).

it is misconceived in relation to your problem. There is no question of any "post bankruptcy asset" here, So although the stuff about "no claim in law" and "ultra vires" may sound like an expert opinion that is going to help you, it isn't.

I think you need to reply to the OR asking on what grounds he has any right to any of the potential future bonus. Point out that many things may change and there may not be any bonus at all. You could suggest that this analogous to a bankrupt being named in someones will - the OR has no right to any future inheritance if the person dies after discharge, there is no attempt to claim such property as the will could later be changed.

NB There are other analogies however that might not help you, eg a joint life assurance policy, see https://www.insolvencydirect.bis.gov...fePolicies.htm . Although I think it is worth asking questions about this, it may well be that the OR is right.

[Openlaw15]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

This is a badly mangled description.

The right to this future bonus (if the right exists, and I have said it is not clear that it does) will NOT be because it is after acquired property, instead it will be because it was property which the bankrupt owned at the point of going bankrupt. In which case it would be Long Term Asset and the relevant extract from the OR's manual is what I have already linked to: https://www.insolvencydirect.bis.gov...m%20Assets.htm

Assets do not have to be realised before discharge. It is misleading to suggest that they do. Take a common situation where someone inherits, with the death occurring before bankruptcy or after bankruptcy but before discharge - the inheritance will still go to the OR even if the estate is not distributed for many years.

If a pensioner were to defer her pension the TIB cannot realise it as an asset simply because the pensioner has yet to acquire it (ie not yet taken it out). So, the TIB cannot therefore have anymore rights to the immaterialised (or whichever analogous adjective used) pension than the pensioner whom and where, the TIB has transferred the pensioner's rights to property/ asset under trust to himself (to use the masculine term).

[Debt Camel]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

How can something be property or an asset if it hasn't been converted into property. No, because if the Will has a 'trust' clause where it's safe from the OR

Sorry but those two sentences are legal nonsense.

And please don't side track onto Trust Law - my example of inheriting was just because it is a common occurrence where there are definite rules for what the OR can and cannot do depending on the date of bankruptcy, discharge and death. Whether there is a Trust in the Will is a complete red herring.

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If a pensioner were to defer her pension the TIB cannot realise it as an asset simply because the pensioner has yet to acquire it (ie not yet taken it out). So, the TIB cannot therefore have anymore rights to the immaterialised (or whichever analogous adjective used) pension than the pensioner whom and where, the TIB has transferred the pensioner's rights to property/ asset under trust to himself (to use the masculine term).

Well we will have to wait for the result of the Horton v Henry appeal case to be able to say anything about that. But in any event it is not a helpful analogy for this case. Pensions are an entirely different legal kettle of fish.

[Openlaw15]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

Sorry but those two sentences are legal nonsense.

And please don't side track onto Trust Law - my example of inheriting was just because it is a common occurrence where there are definite rules for what the OR can and cannot do depending on the date of bankruptcy, discharge and death. Whether there is a Trust in the Will is a complete red herring.

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Well we will have to wait for the result of the Horton v Henry appeal case to be able to say anything about that. But in any event it is not a helpful analogy for this case. Pensions are an entirely different legal kettle of fish.

Actually you side-tracked onto 'Wills'.... The awaiting result in Horton applies to pensions, not 'bonuses.'

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Sorry but those two sentences are legal nonsense.

And please don't side track onto Trust Law - my example of inheriting was just because it is a common occurrence where there are definite rules for what the OR can and cannot do depending on the date of bankruptcy, discharge and death. Whether there is a Trust in the Will is a complete red herring.

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Well we will have to wait for the result of the Horton v Henry appeal case to be able to say anything about that. But in any event it is not a helpful analogy for this case. Pensions are an entirely different legal kettle of fish.

Horton relates to pensions....so how exactly is it not relevant?

[Openlaw15]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

Sorry but those two sentences are legal nonsense.

And please don't side track onto Trust Law - my example of inheriting was just because it is a common occurrence where there are definite rules for what the OR can and cannot do depending on the date of bankruptcy, discharge and death. Whether there is a Trust in the Will is a complete red herring.

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Well we will have to wait for the result of the Horton v Henry appeal case to be able to say anything about that. But in any event it is not a helpful analogy for this case. Pensions are an entirely different legal kettle of fish.

How exactly is it a red herring...when a Will usually has 'Trust' clauses to stop the Receiver getting their hands on the settlor's property. You used the Will analogy but obviously didn't think of the Trust protection. There are only a few ways in which a Receiver can claim an interest in the testator's property, or the settlor's property if the term 'trust' is used. The Trust is the solution to that problem, mainly anyway.

[Debt Camel]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

Deep sigh

I wrote "Take a common situation where someone inherits, with the death occurring before bankruptcy or after bankruptcy but before discharge - the inheritance will still go to the OR even if the estate is not distributed for many years."

That is correct. It is also relevant because what is important here is the sequence of dates/events and the OR's power.

The fact that it is possible to write a Will to circumvent the usual procedures is a red herring as it doesn't change the standard situation at all.

It was the standard situation that provided a clear example of a common situation in which the OR takse assets after discharge. contradicting your incorrect assertion that "The period of bankruptcy only lasts a year so any right the receiver has must be realised before the BK discharge."

[Openlaw15]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

Deep sigh

I wrote "Take a common situation where someone inherits, with the death occurring before bankruptcy or after bankruptcy but before discharge - the inheritance will still go to the OR even if the estate is not distributed for many years."

That is correct. It is also relevant because what is important here is the sequence of dates/events and the OR's power.

The fact that it is possible to write a Will to circumvent the usual procedures is a red herring as it doesn't change the standard situation at all.

It was the standard situation that provided a clear example of a common situation in which the OR takse assets after discharge. contradicting your incorrect assertion that "The period of bankruptcy only lasts a year so any right the receiver has must be realised before the BK discharge."

Your sentence was ambiguous as there was just inherit hypothetically, but no actual thing itself. You seem to have a liberal view of the TIB, I hold a contrary view, and that is to challenge any rights the TIB thinks he has, based on law. I hold the legal view, and that is show me the law - not procedure - as the procedure is only a guide. The law is king in my view - the procedure is not.

[Kati]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

:focus:

Please try very hard not to get into personal arguments on people's threads, it helps no one. Thank you.

I have left them for now as there is some useful stuff intermingled, however if the OP would like posts removed from this thread just drop me a PM.

[Debt Camel]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

Sorry [MENTION=49370]Kati[/MENTION]

[Openlaw15]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

:focus:

Thank you Miss Katy for keeping us in line :P

[Jesus Quintana]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

All made good reading! I have response almost ready, mainly raising the dispute from that if the bonus was applied then it should be claimed by the trustee under an IPA/IPO, rather than as after-acquired property - as a payment in this respect comes under the definition of income as set out in Insolvency Act 1986 section 310(7)

The core argument is the same, the bonus needs to be treated as a bonus and not a guaranteed asset/property

[Debt Camel]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

mainly raising the dispute from that if the bonus was applied then it should be claimed by the trustee under an IPA/IPO, rather than as after-acquired property - as a payment in this respect comes under the definition of income as set out in Insolvency Act 1986 section 310(7)

This is NOT after acquired property.

This is an entirely pointless argument to make.

I think you should consider talking to a solicitor that specialises in insolvency.

[Jesus Quintana]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured



The point from the beginning has not changed. Can the possibility of a bonus be taken into account as part of the bankrupts estate today when the bonus may or may not be paid in 16 months time?

[Debt Camel]

Re: Expartner going bankrupt - adjudicator wants part of a future bonus from secured

That is indeed the point.

That is why i suggested you ask the Official Receiver to explain on what grounds he has any right to any of the potential future bonus. Point out that many things may change and there may not be any bonus at all.

When you have a reply from the OR, you will have a better understanding of the issues. There is no need for you to be citing laws at this point. Don't try to pop in phrases such as after acquired property. Just ask a question in simple English.