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indy2005
Junior Member
458 Posts |
 Posted - 20 May 2008 : 19:41:41
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Hi,
I spoke to Julian before and really appreciated the advice on equity of exoneration. I went BR recently owing 55K, with approx 70K equity in the house I share with my wife.
2 years ago we remortgaged (65K) to pay off my unsecured debts, with the mortgage in joint names. It was agreed at the time I had no interest in the house and this year, when my wife was earning enough, we transferred the house into her name and she mortgaged on her own.
Having gone BR now, I am concerned what the BI will be, bearing in mind we remortgaged in joint names 2 years ago, and I then went on to accumulate more debt..(idiot!). We had a declaration of trust drawn up this year when we remortgaged stating the reason for the transfer was to recognise my zero interest in the house.
As I am a glass half empty, rather than half full kind of guy at the moment I have been looking around and there seem to be examples of equity of exoneration being overturned by the courts.
http://www.familylawweek.co.uk/library.asp?i=1151
Any advice and reassurance appreciated.
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melanie_giles
Senior Member
1191 Posts |
Posted - 20 May 2008 : 19:51:55
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I think your wife has a good claim, so long as she has kep all of the paperwork relating to these issues, but she may have to be prepared to make some form of offer of settlement at the end of the day.
You mention that the property was transferred when your wife earned enough, indicating that in previous years she may have been supported by you from the earnings from your business. In which case her equity of exonoration claim is weakened.
I suggest that you prepare yourself for a sensible discussion and settlement, rather than a battle in Court, but your wife will need to seek proper professional advice before proceeding with anything, and this is often better done before the bankruptcy rather than after.
Let us know how it all works out for you both.
For an informal chat about any financial difficulties, or advice as to the options available, I can be contacted via my website - www.melaniegiles.com |
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indy2005
Junior Member
458 Posts |
Posted - 20 May 2008 : 20:00:05
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Thanks,
Not sure where we stand, as I am earning 3 times my wifes salary and all the payments come out of her account and have for 2 years (I am an ex gambler and so it was sensible to remove my access to funds).
Too late to take advice now as I went BR yesterday! We have been told by a few people to be prepared to make a "nuisance" payment but not sure what this should be. I could probably get 10K from my mum but would that be enough on potentially 35K of equity (at market value). Then again, Julian rang me earlier and said it sounded like I should stick to my guns and pay nothing.
Not sure how to play it. Can they just drag me to court? What would be the process of negotiating a "nuisance" payment and over what time frame?
Thanks
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melanie_giles
Senior Member
1191 Posts |
Posted - 20 May 2008 : 20:06:09
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Well as Julian has given you good advice so far, it might be sensible to instruct him to represent you in this matter.
If you have been earning three times the amount that your wife has been earning, and transferred your interest in your property two years ago, I have to say that I feel your wife will need to be realistic and make an offer to the Trustee which I cannot quantify as I do not have detailed knowledge of your case. I regularly act as a bankruptcy Trustee, and have to say that I would be pursuing this if I were on the other side with a view to reaching a commercial agreement.
As Julian has advised you to "stick to your guns", then he would seem to be the right chap to have by your side in the negotiations.
For an informal chat about any financial difficulties, or advice as to the options available, I can be contacted via my website - www.melaniegiles.com |
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indy2005
Junior Member
458 Posts |
Posted - 20 May 2008 : 20:08:00
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Thanks,
Didnt know you could have someone on your side in the negotiations. Thought it was just me vs trustee.
i |
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melanie_giles
Senior Member
1191 Posts |
Posted - 20 May 2008 : 20:12:20
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Not at all - if you want to pay someone to help you then firms like the one that Julian works for make a living out of this. And sometimes their presence makes your argument a whole more credible, and you won't feel so alone in the process.
For an informal chat about any financial difficulties, or advice as to the options available, I can be contacted via my website - www.melaniegiles.com |
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Helpful Advice
Average Member
United Kingdom
646 Posts |
Posted - 20 May 2008 : 22:18:34
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Hi Indy,
Equity of Exoneration is always a tricky battle and the devil is well and truly in the detail.
Unless you have full documentation of each step then your case is weakened and as Melanie points out with you earning considerably more than your wife and contributing towards the mortgage payments and household bills there is an argument that you have again developed a proprietary interest in the property.
A Trustee in Bankruptcy will consider all of this to make a claim over the property, however if all is explained and a nuisance payment is offered this often can plicate the Trustee from a lengthily and expensive legal battle.
Not to say that sticking to your guns maybe the right move, but this would depend on your paperwork and the full details of your case.
Kind Regards,
Brett England
Bankruptcy Specialist
England,Jackman & Spacey
WebSite www.ejands.co.uk
View my personal story & blogs at:
http://brettengland.blogs.bankruptcyhelp.org.uk/ |
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indy2005
Junior Member
458 Posts |
Posted - 24 May 2008 : 00:03:41
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Hi,
I am willing to pay something, but if there is 70k of equity in the house, I dont see that a court in the land can say 35K of that is mine. In one month I have a bank statement showing 65K in from a remortgage and 65K out to myy creditors.
Is it black and white in that they will deem the asset to be shared 50/50?
I am now wondering if a fast track voluntary arrangement may be best for me. My mum is waiting with 20K in the wings, and in an IPA I would probably be paying 700 a month for 3 years.
Not sure about the FTVAs. Not sure I want to shout too much about 20K in the wings, as it means that if they do want a nuisance payment, they may ask for 20K. I would have to pay my mum back, so if I could avoid an IPA and pay her the 700 a month back instead of an IPA, then I am in the same situation as I would have been, but without all the grief of bankruptcy.
Regards
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indy2005
Junior Member
458 Posts |
Posted - 24 May 2008 : 00:05:41
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| Happy to send a copy of the declaration to get some proper advice on best options.!?! |
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melanie_giles
Senior Member
1191 Posts |
Posted - 24 May 2008 : 00:53:40
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Indy
None of us can properly advise you about important issues like this on a debt forum. You need proper face to face advice - but only if a challenge arises from the OR. Try not to jump the gun, wait to see what they say and then deal with any issues which crop up.
For an informal chat about any financial difficulties, or advice as to the options available, I can be contacted via my website - www.melaniegiles.com |
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indy2005
Junior Member
458 Posts |
Posted - 24 May 2008 : 01:06:22
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Hi,
Thanks. Can I ask a general question - is there a window of opportunity for an FTVA, or when you have entered an IPA have you missed the chance. Is it something I suggest, or will the trustee...after all the trustee doesnt know about mums available contribution. |
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melanie_giles
Senior Member
1191 Posts |
Posted - 24 May 2008 : 01:07:12
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You can propose an IVA at any time until you are discharged from bankruptcy, whether you have an IPA or not.
For an informal chat about any financial difficulties, or advice as to the options available, I can be contacted via my website - www.melaniegiles.com |
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indy2005
Junior Member
458 Posts |
Posted - 24 May 2008 : 17:23:58
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Thanks,
And would this have to be set up my my trustee?
Regards
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Reviva UK
Advanced Member
United Kingdom
2452 Posts |
Posted - 24 May 2008 : 18:44:18
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Hi Indy
this wouldn't be set up by trustee so as suggested perhaps bringing Melanie in if initial conversations with the IP are not successful
Paul Johns
Assisted Bankruptcy Specialists
Reviva UK
www.revivauk.com |
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melanie_giles
Senior Member
1191 Posts |
Posted - 24 May 2008 : 21:59:59
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The OR can put forward an IVA proposal - called a Fast Track Voluntary Arrangement - but in reality these are quite rare and the ORs offices are not really geared up to do them.
For an informal chat about any financial difficulties, or advice as to the options available, I can be contacted via my website - www.melaniegiles.com |
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JulianDonnelly
Junior Member
United Kingdom
325 Posts |
Posted - 25 May 2008 : 20:27:47
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Hi Indy,
In my experience the FTVA's are not as successful as an IVA proposal by an IP.
You can still propose an IVA even though you are Bankrupt and don't have to go through the FTVA process.
I would also suggest contacting Melanie and her team to discuss your options.
Julian Donnelly
Spokesperson for www.Bankruptcyhelp.org.uk |
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Beneficial Interest
