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digman
Junior Member
United Kingdom
319 Posts |
 Posted - 28 November 2011 : 19:18:25
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Hi ,
...a little background info to start ...
Myself and wife declared bankrupt oct 2008
Myself and wife both automatic discharge oct 2009 ( me with a 4 yr BRU )
Neither of us have or had an IPO .
A few months ago put in a claim for a PPI reclaim for a loan with a lender in 2004 . This was a secured joint loan and did not form any part of our BR . We was allowed to keep making the monthly payments as it was a secured loan . The reclaim has been allowed for 11000 in total and forms sent back signed and sealed and waited for the chqs to arrive .
This saturday just gone the cheques arrived but were totalling exactly half of the amount we was told we would be getting and made out to my wife . I assumed my half of the amount would follow today and when it didnt rung up the lender to clarify what was happening .
Was told my half of the amount had been sent via chq to the RTLU .
Rang RTLU to see what the situation was and was told they were keeping it as it is classed as an asset for my BR Estate .
MY QUESTION IS THIS .....
with the origional loan not being part of our BR can the RTLU claim the money
and secondly if they are claiming my half of the amount why havent they claimed my wifes half as well ?
Any opinions or knowledge would be appreciated
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Edited by - digman on 28 November 2011 19:20:40 |
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debtinfo
forum expert
2826 Posts |
Posted - 28 November 2011 : 19:32:46
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Yes they can claim it and they should be claiming your wifes half as well, in fact your wife will be commiting a bankruptcy offence by not telling them that she has received it, futhermore, you both did not really have the legal right to claim it in the first place as that right passed to the trustee on the making of the bankruptcy order.
It forms part of the bankruptcy estate not because of the debt but because of it being an asset |
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Daniel Griffiths
Junior Member
United Kingdom
268 Posts |
Posted - 28 November 2011 : 19:58:36
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Hi Digman
One thing you can count on is that quite a few bankrupts are going to fall foul of this, many sincerely believing that this payment belongs to them and not knowing it belongs to the bankruptcy estate, |
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digman
Junior Member
United Kingdom
319 Posts |
Posted - 28 November 2011 : 20:02:46
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Hi Daniel ,
Yeah your right there ,the gentleman i spoke to at RTLU this morning said that we aint the first and we would not be the last . In fact today alone in the post 80% of it was from lenders forwarding on PPI reclaim cheques . |
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debtinfo
forum expert
2826 Posts |
Posted - 28 November 2011 : 20:14:02
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your right digman in that any new assets that come your way are yours to keep, however the asset in the case is the right to claim, officially called a right of action, this right arose when you were misssold of signed the contract for the PPI. That is when the claim arose and so was pre bankruptcy, and claim passed with all your other assets into the bankruptcy. if your wife keeps the money she has taken money that should belong to the estate and so a bankruptcy offence is commited, it is her job to know or check this, as they say ignorance of the law is no defence
i will be back in a min, i wrote a more detailed piece about this for another forum, and i will go get that |
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debtinfo
forum expert
2826 Posts |
Posted - 28 November 2011 : 20:15:31
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here we go
Ok then PPI, (that is payment protection insurance) and bankruptcy, or more specifically reclaiming PPI and bankruptcy. Please note this is not about if you are eligible (in terms of if you have been miss-sold) as that is not my area and there is plenty of advice on that elsewhere, probably elsewhere on this site in fact. So for the purpose of this lets just assume that you have been miss-sold and that there is a potential to make a claim against a bank.
It has been asked many times recently if you can reclaim the PPI on credit agreements if you have been made bankrupt, and more importantly for some people, whether you can keep any pay out.
The first thing to understand is why a claim can be made in the first place. If it has been miss-sold to you then there has been damage caused to you estate (your finances) and so you had a right to take action in court to seek recompense. This is called a right of action. Next to look at is when this right came into being. It comes into being when you signed that contract where the miss-selling was done, from that point onwards the right or action (ROA) comes into being.
Next is to see how that ROA interacts with bankruptcy, when you go bankrupt it is the default position that all of your assets transfer to the trustee of your bankruptcy unless there is a specific provision otherwise (for instance there is a specific position that you get to keep all your basic living goods). Now in the definition of what is an asset in bankruptcy it includes “Things in action”. An ROA is a “Thing in action” and therefore is an asset.
So to summarise the ROA is an Asset and that asset is created when you signed the credit agreement. Being that in these instances the PPI claims we are talking about are all on credit agreements signed before the bankruptcy then these PPI claims are all assets and they all vest with the trustee of your bankruptcy.
This means that not only do you not have the right to receive the monies from any claim but that you also do not have the right to make the claim, That right passed to the trustee and so it is the trustees right whether to take it forward or not, the claim now belongs to them.
As far as I last heard the Insolvency service is trialling using a solicitors firm to take batches of these claims forward en masse to the banks and therefore if you have already made the claim and pocketed the cash there is a good chance that the IS will at some point try and cash in the claim and therefore realise that you already have. At that point they will have the option of recovering it from you. |
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Clarification from one of the experts please ?
