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| justdischarged33 |
Posted - 13 October 2010 : 20:19:43
My husband and I declared ourselves bankrupt on 23.11.09 and were discharged on 23.09.10.
My husband has a pension fund of which he is entitled to draw £6,800 each November if he chooses. He does not get his final lump sum until he is 70. This was declared when we filed our Petition with documentary evidence and we drew on the sum last year in order that the IS could pay off some of our creditors in bankruptcy. We recived a letter from the OR in Exeter in February 2010 stating that his pension does not form part of his estate in bankruptcy. However, the case was then transferred to the IS in Swansea and the person dealing with it there is adamant that my husband should draw the money for the next 3 years and give it to the IS even though we have quoted the letter from the OR back in February to her.
Unfortunately due to our low paid jobs
we are desperate for money for household bills and car repairs. I am paying an Income Payments Agreement and have asked for a questionnaire from Moonbeever to see if there is any way I can reduce this.
What we really need to know is if my husband does draw on his pension this year can the IS take this? We are determined to fight it all the way if we have to.
Please could you give us your view on the pension front? |
| 7 L A T E S T R E P L I E S (Newest First) |
| justdischarged33 |
Posted - 23 October 2010 : 16:22:53
Thank you for your comments Big Al and chester, we are still waiting for the letter from my husband's pension firm outlining the facts so that we can forward it to the RTLU.
I will let you know the outcome once it is to hand from the RTLU.
I would like to add that this forum is really positive and can aleviate many worries that people have.
I know when we were about to file our bankruptcy petition I was so worried about things that it made me ill. My advice to anyone for whom bankruptcy seems the only way forward is to take advice from this forum and an IP if possible and to take the plunge. A year later and it is lovely not to come home to piles of post demanding payment etc, especially in this current climate.
Once again, thank you for your responses and I will let you know the outcome. |
| Bigal4787 |
Posted - 22 October 2010 : 17:21:49
Hi,
I think based on what you have said,and in consultation with your IP, that the Insolvency Service's own technical manual negates any attempt by the RTLU in Swansea to get an IPA based on your husband's pension, especially as you have been discharged from bankruptcy since September. The problem with RTLU's is that sometimes they are like enforcement agents, trying to obtain IPA's, and realise equity in properties, sometimes as you have found out, without proper regard to their own technical manual! So I think you should be able to draw on that pension once the position has been made clear to Swansea.
Big Al |
| chester2005 |
Posted - 22 October 2010 : 02:50:19
if your husband did not sign an IPA before discharge then no OR or Trustee can lay any claim to any payments received after BR discharge whether from a pension or not.
i have just asssisted in a case where the trustee was attempting to gain an IPA 13 months after discharge but when i pointed out that it was against the law as per the insolvency act they dropped the court case
Dave
Don't worry or know that worrying is as effective as trying to solve an algebra equation by chewing bubble gum.(Baz Lurhman)
RevivaUK and Paul Johns helped me through it all i can't recommend them enough!! |
| justdischarged33 |
Posted - 21 October 2010 : 19:15:23
Hi Big Al - thanks for your reply. Firstly the lump sum that we drew last year was drawn before we declared ourselves bankrupt and we accepted that that money would go some way towards our creditors. My husband has not signed an IPA but I did and was paying £100 per month. However, our mortgage went up and we were struggling to make ends meet so I asked for a questionnaire to be sent to us. In our expenditure, I put that my husband paid half of the outgoings and I paid the other half. That is when they wrote back to us and said he had to pay £33 and my IPA decreased to £42 per month. My husband has not paid anything into an IPA at all.
We have on the advice of an IP checked the IS website about pensions and it is clear that if we did choose to draw on the money this year as we are now discharged the IS could not claim it (they have not made a charge against at and as the pension provider says they would be unable to do so in any event as it is his retirement pension). I am not saying that we will draw on it this year but we need to be clear on the matter.
From the advice of the other IP we spoke to we feel we now have things in black and white (from the IS website). We are still waiting for a letter from our pension provider stating the facts and we will then send this off to the RTLU in Swansea. They have written to Moonbeever stating that they are putting my husband's file on hold until all the documentation is sent to them.
I must say that this has gone on for a year now and just when we think things are sorted, another problem seems to pop up! Particulary since things have moved to Swansea.
I will keep you posted on events! |
| Bigal4787 |
Posted - 19 October 2010 : 00:39:42
Hi,
unfortunately you've become the victim of, different OR's interpreting the rules on insolvency differently,especially as it looks like yours has gone to an RTLU, who tend to be more rigorous when seeking IPA's etc.
When your husband drew on the pension whilst in bankruptcy, was an IPA entered in to, as an IPA document can be varied to either have 36 monthly payments of £X per month, or in this case it could have stated 1 payment yearly in November of £6,800.
From the technical manual that the IS uses, it does state that any lump sum payable whilst bankrupt, should be claimed under an IPA or IPO. If the lump sum that you paid was not claimed under an IPA/IPO, then surely a further 2 payments cannot be claimed. There are other experts on this forum who may be able to clarify this further, as pensions are complicated.
Additionally where has the £33 per month come from, if it isn't an IPA, and he never signed one? can the OR in Swansea show what it is for?
Big Al |
| justdischarged33 |
Posted - 14 October 2010 : 17:44:51
Thanks for your reply. However, the letter from the OR in February states as follows...
"I am writing to confirm that the pension which will become payable under policy number ..... does not form part of the bankruptcy estate and does not vest in the trustee in bankruptcy.
However, if the pension comes into payment whilst you remain undischarged from the bankruptcy proceedings, those payments will be taken into consideration in any calculation for an Income Payments Order".
In "notes about discharge from bankruptcy" sent to us with our discharge letter sealed by the Court states "The need to cooperate with the OR in any further investigation or the realisation of any asses that is part of the bankrupt estate". The letter received in February confirms that this pension does not form part of the bankrupt estate. It goes on to state "any new money that comes into your possession is not part of the bankrupt estate"
Although my husband never signed an Income Payments Agreement at the time of our bankruptcy (although I did), he has now been told he has to pay the sum of £33 per month which we will just about be able to do but we are finding it incredibly hard to manage on our low income and we really just want to clear up the question of his pension. We have stated that we do not intend to draw on it even though it would have helped us greatly, but you will I am sure appreciate that if the money should go to the IS, we will obviously not be drawing on it until the Income Payments Agreement comes to an end in 2 years time. |
| debtinfo |
Posted - 13 October 2010 : 22:51:35
the mney would not be taken as a pension as this is protected, but if he draws on it this then becomes income rather than pension and so is open to an IPA |
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