Hi markhollis64

Welcome to the forum and hopefully we can assist.

To answer the points in your post:

Yes, the RBS debt would be included. If the debt exists at the time of signing the Trust Deed, even though the bank have not yet called on the Personal Guarantee, it would still be included.

There should be no issue with the property for 2 reasons. Firstly you advise that the debts were incurred after the property was signed over and if you can show you were solvent after the transfer, then any challenge is unlikely. Secondly the challengeable period for a trustee to pursue this would be 5 years back from the date of appointment of trustee as this was a transfer to your wife. The transfer appears to have been 6 or 7 years earlier, so again a challenge is unlikely.

Liquidating a company (or winding up as we say) is normally one of 3 ways:

* A creditor petitions the court and an Interim Liquidator is appointed.

* You petition the court to have an Interim liquidator appointed who you can choose.

* You can proceed under a S.98 Winding up where the Directors/Shareholders (with no court involvement) and you convene a creditors meeting with the assistance of an IP and the Liquidator is appointed at the creditors meeting.

The main difference between them is the last 2, you appoint the IP. Looking at the last 2, the final option is a cheaper option as you do not incur the court/solicitor costs of using the court.

No, it should have no effect on your wife if the debts are in your name.

Hope this helps, although it does read like a condensed insolvency guide.

Mark

Thanks Mark

The information is very clear, so thanks for that. That was interesting about the property time period for an action. Looks like my accountant was actually right for once!

The company itself has limited assets/funds and i was wondering the costs to do the final option avoiding the court and for using the court. can you also let me know the difference between the 2 apart from the cost as you say.

Hi mark

That's the million dollar question. The main costs in not using the court are the solicitors and advertising which alone can easily be around £2k-£3k. The S.98 avoids the solicitors and courts costs, but not the outlays. At best i think S.98 is in the £5k region minimum and the court route would be £8k+. It would vary from firm to firm as some would not touch a liquidation for less than double the figures quoted.

The main difference for using the court is when a creditor has commenced legal action and you wish to wind up before they do it.

Mark

markhollis

have also looked at striking off procedure, where you more or less declare the situation to your creditors (of the business) and invite them to liquidate you or let you strike off. If they don't object it does not mean they will write off the personal guarantees though but these can be added to you TD or seq

you can research striking off on the companies house site and also there are loads of s

Hi Mark

I posted a slightly expanded version of the posts on the forum with the kind help of TDA at

(Link Amended 2020: https://www.trust-deed.co.uk/self-employed-company-director.html).

It gives an overview of the overlap between personal and business debts where a Director can be held personally liable for the debts of the company.

If you need any further advice, please let me know.

Mark

Hi Mark

Thanks for the information and most recent update.

To be frank, I think I have learned more in the last week than in the last 6 years on structure and more importantly personal liability for debts which I previously thought would be dealt with by the company.

Looking back I would certainly have arranged things differently and will need to see the extend of the company's debts and my own to see how best to sort these out. I'll hopefully be in touch soon.

Mark

Hi Mark

No problem. Always glad to help.

Mark

PS You have the same name as the former singer of Talk Talk ( The band not the telephone guys) Only reason I mention it is that I have the original James Marsh painting from the 1986 'Life's what you make it' 7 inch single cover.

It's not you is it?

Mark

Hi Mark

Unfortunately it's not me. Wish it was!

I meant to ask if there is any way the bank can change a persoanl guarantee to secure it over a property.

Thanks again.

Mark

Hi Mark

Very generally the answer is no. If the property has been transferred as described then they cannot attach the debt to this.

There's a long boring thing called 'all sums security' used by some banks as a way of attaching unsecured debts as secured debts, but this would not apply to you.

Mark

Hi Mark (McF),

I guess this might be possible (in time) through use of a legal process?

Hi TDA

Yes, with the new BAD Act and other forms of recovery, this will be an option for creditors. Although you would need to own a property for this to be worthwhile.

From memory RBS and Bank of Ireland use 'all sums security' in the security docs when you mortgage with them which means you take out a mortgage and at a later date an overdraft or unsecured loan etc and then can call on the all sums to secure the previous unsecured debt against the mortgage.

Mark

I meant to say in an earlier post that you can apply to have the company struck off if it has no assets as mentioned by pingpong. Sometimes this is an easier way if no creditors object and it at least gives the creditors an updated position on the company.

Mark

Mark mentioned the BAD Act. Just to elaborate on that a little for the benefit of other readers, this was a piece of legislation that introduced something called Land Attachment, where an unsecured debt could effectively become secured against a property (similar to Charging Orders down in England). However, that particular part of the legislation was never commenced (and possibly never will be) and is therefore not something people need to worry about.

Essentially the only way that anyone would really need to worry about their home in respect of an unsecured creditor is if they entered into an insolvency procedure. For example, the creditor could potentially petition for them to be made bankrupt and if that happened then the Trustee that is appointed would be able to seek to sell the property in order to realise the equity for unsecured creditors.

In this case, given the transfer took place over 5 years ago then the house isn't going to come into the equation in a bankruptcy or Trust deed.