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appealing against a trust deed

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(@morag-samson)
Active Member
Joined: 14 years ago
Posts: 8
Topic starter  

Hi I was on a trust deed, in which was not completed, due to being made redundant. The trustee will not let me be discharged but has discharged himself from my debt.

I have been advised to appeal under regulation 23(2)(a) of the regulations.

Can anyone please advice me.


   
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Mark McFadyen
(@mark-mcfadyen)
Famed Member
Joined: 17 years ago
Posts: 4798
 

Hi morag

I'm sorry it hasn't worked out for you.

In terms of the Protected Trust Deed regulations, your Trustee can seek his discharge for non co operation/failure to maintain payments etc. The 23(2)(a) allows you to appeal the Trustee's decision and have the sheriff decide whether you should be discharged.

Hope this helps.

Mark

Mark is not posting regularly in the Trust-deed.co.uk forum.


   
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TDA (Debt Adviser)
(@tda-debt-adviser)
Illustrious Member
Joined: 16 years ago
Posts: 13594
 

Hi Mark (and the other experts of course!),

For an appeal of this type, what sorts of issues might a Sheriff consider when making a decision?

Qualified Debt Adviser & Forum Administrator - Ask me anything about Trust Deeds


   
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TDA (Debt Adviser)
(@tda-debt-adviser)
Illustrious Member
Joined: 16 years ago
Posts: 13594
 

Another question...

If Morag wanted a solicitor to help her is there a particular type of solicitor that she should try to contact for this sort of case?

Qualified Debt Adviser & Forum Administrator - Ask me anything about Trust Deeds


   
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Shona Maxwell
(@shona-maxwell)
Honorable Member
Joined: 14 years ago
Posts: 634
 

Hi Morag

I have to disagree with what is being said here. Regulation 19 allows the Trustee to be discharged, whilst not discharging the debtor from their debts if they have met theie obligations. However, the Accountant in Bankruptcy's guidance to Trustees states "It would not be appropriate to refuse to discharge a debtor because of a change of circumstances which prevents then from continuing to pay contributions" section 8.1.
I don't think it can be much clearer than that. I think you have a right to appeal. There are solicitors who specialise in insolvency, which would be your best bet. If you let us know what area you live in, I will try and get a name for you.

Shona is not currently posting in the Trust-Deed.co.uk forum.


   
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Kevin Mapstone
(@kevin-mapstone)
Member Admin
Joined: 17 years ago
Posts: 4253
 

I'd be very interested to hear the outcome of this if you do go ahead and appeal to the sheriff, morag. On the face of it, as Shona says, you may well have a strong case - though I am not a solicitor and you would be well advised to find someone who specialises in insolvency law to advise you.

The problem you might have is the cost of taking on a solicitor, I imagine. Having said that, there are agencies such as Citizens Advice that do offer in-court assistance in certain areas of the country. I must admit I'm not sure about the Rutherglen area in this respect.

There is a law centre in Castlemilk I believe, which is a charitable organisation. My geography of that area is not good I'm afraid, so not sure if you would fall within their catchment area...

Scottish Debt Solutions Expert - Ask me for help setting up a Scottish Trust Deed or Debt Arrangement Scheme plan.


   
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(@morag-samson)
Active Member
Joined: 14 years ago
Posts: 8
Topic starter  

Thank you very much for this information, this has given me a little bit of hope now, Shona I live in the Rutherglen/Cambuslang area as Kevin has stated their should be someone in Castlemilk I could contact, I would be very greatful if you could get me a name of the firm. I would hope to be able to get Legal Aid as I have no income coming in. Can I please also mention I paid 5 months into the trust, I wasn't at all aware that I was being made redundant from work, I was told when I asked what would happen if I ever lost my job that the trust would be frozen this has not been the case. I feel I have been totally misled with this trust was told the interest was frozen on 1 creditor that I owe the interest has now went to ยฃ3.000. The trust deed has only changed in a matter of weeks.


   
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(@porcupine)
Estimable Member
Joined: 15 years ago
Posts: 206
 

I deal with Castlemilk Law Centre through work, you must live in within a Castlemilk postcode for them to deal with you.... But their is a law centre at Toryglen which is nearer you, they are affiliated to Castlemilk and offer an excellent service also Govan Law Centre often take on cases out with the Glasgow area........

Just google "area" law centre and you will get there actual addresses..

Hope that helps.....


   
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Mark McFadyen
(@mark-mcfadyen)
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Joined: 17 years ago
Posts: 4798
 

Hi morag

The section you mention allows you to appeal the discharge. All the legal stuff aside, this can only result in 2 options. Firstly the trustee is discharged and you are not. This allows you to petition for sequestration. The second is your trustee petitions for sequestration. I think the net result will be the same, the difference being you pay ยฃ100 or the Trustee pays ยฃ5-700. Alternatively he is discharged and creditors can pursue you for the debts.

I'm sorry how this has worked out, but the above are the options. Re Kevin's point, it is a guidance note that a change in circumstances would not warrant a trustees discharge and this will be followed by 90% of trustees. Unfortunately, it's guidance, not statute.

Not sure if this helps in any way, but please feel free to ask me anything.

Mark

Mark is not posting regularly in the Trust-deed.co.uk forum.


   
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Shona Maxwell
(@shona-maxwell)
Honorable Member
Joined: 14 years ago
Posts: 634
 

There is a third option: as this is not your fault, the Trustee could just leave you in the Trust Deed. You may get another job and be able to resume contributions. Sequestrating you is not in the best interest of your creditors, they gain nothing more. I can only advise you that with my firm, we would just have to accept that contributions have ceased, and we would have to just run with it for the remainder of th e term, hoping you pick up another job in time.

Shona is not currently posting in the Trust-Deed.co.uk forum.


   
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(@morag-samson)
Active Member
Joined: 14 years ago
Posts: 8
Topic starter  

Thank you for your quick response, I dont want to go for bankruptcy as I would be at my wits end if I was to lose my home, The trust deed has offered to pay the fee for this to happen. I have contacted some of my creditors and they have accepted my offer of payment at this stage. I do feel that if I have been given my debt back then I should be able to be discharged from them. I wasn't aware they had my deed to my property are now there's. I shall let you know once I can speak with a solicitor to see where I go from here. Many Thanks it's been the best advice I have had.


   
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(@morag-samson)
Active Member
Joined: 14 years ago
Posts: 8
Topic starter  

Hi, Looking for a bit more information please, As my trust deed has discharged themselves, but not charged me does this mean after the 3 years that you are discharged and you get your deeds back to your property ? Thank You


   
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TDA (Debt Adviser)
(@tda-debt-adviser)
Illustrious Member
Joined: 16 years ago
Posts: 13594
 

Hi morag samson.

I'm not 100% certain on this question, so I'm "bumping" it up the thread list in the hope that Mark, Chris, Kevin or Shona can confirm the position for you soon.

Qualified Debt Adviser & Forum Administrator - Ask me anything about Trust Deeds


   
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Mark McFadyen
(@mark-mcfadyen)
Famed Member
Joined: 17 years ago
Posts: 4798
 

Hi morag

Your trustee has asked the creditors to discharge himself but not you. This effectively puts you back to the position the day before you signed the trust deed where you do not have a trustee in place and are again fully responsible for your debts.

As a result of the above, creditors can now legally pursue you for the debts.

As the trustee is discharged, he has no interest or hold on your property.

Mark

Mark is not posting regularly in the Trust-deed.co.uk forum.


   
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(@morag-samson)
Active Member
Joined: 14 years ago
Posts: 8
Topic starter  

Hi Mark, Thanks for your response, I went to money matters to get some help on my creditors, but was advised that they cant help as i'm on a trust deed. So my next question is why wont they let me be discharged as i'm fully aware that I have the debt back. If the trustee has no interest in me and I'm back to square one does this mean the only way is for a court to discharge me, sorry for asking so many questions I have got an appointment with a solicitor next week.

Kind Regards


   
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