If the sheriff doesn't grant permission for the Trustee to be reappointed then the Trust Deed won't be reopened and you should therefore receive the funds.

Ultimately it's for the Trustee and a Solicitor to present a legal argument to a sheriff. I think with so few cases having been dealt with until now it's a bit of a grey area.

I think we will need to see how it plays out with BDO.

If they do apply to the sheriff then you are best to consider taking legal advice from a Solicitor who has extensive experience in dealing with Insolvency related matters to act on your behalf as its a lot of money.

Thanks

I am using a claims management company, who have asked me to forward any court literature to them and they will argue on my behalf. It's in their interests to do this as they only get their commission if I physically receive monies.

Interestingly, the Halifax have sent me a cheque for Mortgage Payment Protection with no mention of a trustee, and also a credit card policy refunded without any mention either.

TDA - with or without permission from the sheriff, I really don't see how on earth they can hold onto the cheque if its made out in my name.

Do you mean that because the cheque is made out to you then they can't cash it?

Under an Insolvency process if a cheque is made out to the individual subject to the Insolvency process the Trustee can normally cash this without any issues.

At the moment they have no authority to cash the cheque so will probably be unable to but they may decide to hold it pending a decison.

Sorry David yes. They have absolutely no right whatsoever to hold a cheque in may name irrespective of any decision - and I've taken legal advice on that. Cashing a cheque in my name would be even more serious, and fraudulent.

Were you given any advice about how they might be compelled to hand over the cheque to another party tinsoldier?

Playing devil's advocate, they didn't ask for it to be sent to them in the first place?

Because as it stands the cheque is no more theirs than a strangers.

If i was sent a cheque I had no authority to hold what should I do with it?

You'd probably consider returning it to the sender I'd have thought, or deliver it to the intended recipient. I'm sure most of us would.

But what if you felt you had a professional obligation to do something before that? Or if you might be held personally liable if they money ended up in the wrong hands and you were responsible for that?

In those circumstances might you refer the matter to an independent party to arbitrate - like a court of law? You'd then protect yourself professionally and financially. And might you hold onto the cheque in the interim to protect yourself pending an independent decision being made?

It's understandable in those terms why a trustee would prefer to hold onto a cheque - which is why I asked whether your legal adviser had any ideas to compel them to do otherwise tinsoldier?

Because they are not my trustee and have no vested interest in my affairs and longer. Under what legislation do they feel they have the authority to hold onto my cheque?

Here's another question. How much of those funds that the trustee feels compelled to gather for creditors will actually go to them?

A cynic would say trustees fees will be quite large in this process, and of course there are lawyers and court fees on top.

I will ask again - do BDO have a legal right to hold onto a cheque which is nothing to do with them as it stands?

Hi tinsoldier.

I'm not taking sides. In your position I think I'd be putting forward the same very sound and logical arguments that you are. If I was a trustee I'd be asking myself whether I have any regulatory or financial exposure if I didn't try to protect and later gather in those funds for creditors. If I was a former creditor I'd think it very unfair if the money which might have been collected during a trust deed didn't now come to me - not least because it would have done so in other types of personal insolvency in the UK.

Nobody here can give you legal advice I'm afraid - we're not qualified or regulated to do so.

The practicality of the situation is that the trustee may well hold the cheque if they're minded to try to reopen the trust deed. That's why I've asked a couple of times whether you legal adviser had any ideas to compel them not to do that?

If they hold the cheque, and you don't think that's right, it would then be down to you to force them to do otherwise.

Hi TDA

The legal advice was that it simply is not theirs to hang onto as things stand at the moment.

Mark who used to post on here agreed with that on an earlier thread.

That might possibly be the case tinsoldier.

So if it turns out that they do hold onto the cheque while seeking to be reappointed, what will you do?

As said earlier, the claims management company legal team will fight my case. I will also inform the ombudsman and I have already corresponded with the debt advisory service who agree that the cheque is not theirs to keep.

Seeking to be re-appointed and holding onto funds which they have no legal right to are two seperate issues.

It seems to me that some firms are making the rules up as they go along here.

Hi tinsoldier,

Prior to being aware that some firms were applying to be re-appointed in a Trust Deed when I thought there was no way you could do this I would have said they have no legal right to hold onto the funds and you should demand these back.

Now after learning that this is starting to happen the Trustee has to be cautious about releasing funds in the event that they can be reappointed to deal with the funds. I can see it from your Trustees point of view and also yours. Like I said in an earlier post, as of yet Solicitors haven't argued this out before a sheriff which is what is required to give clear guidance on it.

You really need to receive legal advice from a Solicitor who is experienced in dealing with Insolvency issues and the legislation. Even then, BDO may choose not to release the cheque to you until they have decided what they are going to do. I suppose the only way to force them to release the cheque to you would be to raise legal action against them.

Perhaps send a letter in writing to BDO asking for clarification and advising that you have taken legal advice and you do not believe they have any authority to retain the cheque rather than speaking with them on the phone. Things in writing under these circumstances is the best way forward.

I'm limited to what more I can add to try and assist you.

I can understand your frustration though especially when there is a large amount of money at stake for you.

Hi David

It is frustrating yes, and the way I was spoken to by BDO yesterday was a disgrace; I felt like I was back IN a trust deed.

Might they decide not to try for reappointment or is it a formality like the guy from BDO said?

And do I have to go to court?

Hi tinsoldier.

We know that not every firm is currently seeking reappointment in these circumstances.

You wouldn't have to attend court. If you wanted to put forward an opposing case then you or a representative would want to be there.