Welcome to the forum Pascal12.

This subject has come up a couple of times recently.

Firstly, if your trustee hasn't been discharged from you trust deed there's little doubt they can use this money to help repay your creditors.

If they have been discharged, they'd have to effectively reopen your case. The experts here have written previously that they're not aware of this having happened previously with a trust deed, but that this can happen with other types of personal insolvency when an asset that should have been gathered in wasnt.

Therefore, if your trustee tries to do this, I'm not sure we can currently tell you how likely it is that they'll be successful.

Thanks very much for the reply. My trust deed doesn't appear on the accountant in bankruptcy website which I've been told means my trustee had discharged themselves. I was thinking of writing to them and requesting they send the cheque back to the bank of Scotland as they are no longer my trustees and therefore have no rights over my financial affairs anymore?

I'm sure that's worth a try Pascal12.

Please let us know how this develops. The prospect of a trust deed being opened again to capture a missed asset appears to be an emerging subject that we may hear about more here in the future.

surely this is just another example of the person who completed the trust deed being punished for the mistakes of their TD firm? Seems like it is never truly over 🙁

You could look at it that way TimeLord.

Alternatively you could say that it's only for the single purpose of paying over an asset that was due to the creditors anyway (otherwise they're being punished for something that definitely wasn't their fault either).

In my view it feels a bit different if:
1 - An asset (like a PPI claim) has been inadvertently missed.
2 - An individual has taken steps to hide an asset which was later discovered.

It might all be irrelevant though. We don't know if it's even possible.

'Resurrecting' the appointment is difficult but can be done via the court in a sequestration. I think this will be far more difficult to do in a trust deed.

If it was me, my argument would be that the trustee has no authority to hold onto the funds and these should be passed to you immediately. Even allowing for some future resurrecting event, however unlikely that is, he has no locus at present to 'safeguard' the cheque as an asset. You should also put pressure on the bank as they have passed the cheque to a non interested third party.

Mark

Sorry I meant to add that the trustee would require a court order to hold into the funds before seeking any re appointment.

It would be an interesting scenario if the trustee banked the cheque without your authority. Pretty serious issue I suspect if this were to happen.

Mark

I am just curious having read this thread. It does not relate to me but I do find the concept of a never-ending situation contrary to the marketing and the explanation I received about a Trust Deed (although I realize things have changed a bit since).

I had a conversation with someone once who said an IVA could be re-opened in England but a Trust Deed could not (in Scotland).

Supposing a Trustee set his/her mind to try to re-open a case.

Would a Statute of Limitations regarding debt be applied?
I understand there is a variation in Scottish Law about debt.....

Under Scottish law, if a lender allows time to pass without receiving any payment, an action for recovery may become barred under the Prescription and Limitation (Scotland) Act 1973. (For details of this Act see Gloag and Henderson 12th edition at Chapter4.). These debts are completely extinguished and cannot be enforced. Once the prescriptive period expires the debt cannot be allowed as a deduction.

So.... would the six years (simple contracts and Trust Deeds credit reporting) apply. What would the courts find a reasonable reason to re-open.

I realize it may only be your (expert) opinion at this stage, but I am interested in when would be considered time-barred.

I'm not sure prescription would apply here. The period would commence from the end of the trust deed as opposed to the start. The ongoing process of the trust deed would be a recognised acceptance if the debts until such time as the trustee was discharged.

I would agree though that this would be difficult if not impossible to resurrect. My attack would be why a non interested third party is holding onto my dough with no authority to do so. If the cheques been cashed, as mentioned, it's no different to your neighbour cashing your cheque without your authority, prior trust deed or not.

Mark

I agree, Mark.

I also think that there is a crucial difference between sequestrations and Trust Deeds, in that the law says that any asset that exists at the date of sequestration (such as a potential PPI reclaim) vests in the Trustee. In other words, it effectively becomes an asset belonging to the Trustee, to potentially be realised for the benefit of creditors and can be seen to still be vested in the Trustee even if they have been discharged.

A Trust Deed isn't the same though. Assets do not vest in a Trustee, there is merely a legally-binding promise by the debtor to convey them to the Trustee. Once the Trustee is discharged then I can't see that there is a strong argument at all to say that the trustee has any claim over them whatsoever.

However, I'm not a lawyer...

Hi Kevin

I'd still pit our wits against any lawyer I've ever met!

Mark

Thanks for your advice everyone, I have written to my ex trustee today asking them to send my cheque back to the bank of Scotland or to send me a detailed legal explanation as to why they refuse yo do so. Will keep you updated

Hi Pascal12

Please keep us updated on the response. It should be interesting.

I also meant to ask how much the cheque was for.

Mark

I will do. It was for nearly £6,000.