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Scottish Trust Deed Forum
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Topic starter
24/02/2015 8:07 pm
I wonder if your legal experts would comment on the undernoted response from my former Trustee, the situation is both myself and Trustee discharged Jan 2012, PPI monies now due to me are being requested by the former Trustee, I have written confirmation from an AIB case officer which states and I quote " If your trustee has been discharged any funds received from PPI should be forwarded to you".....see former Trustee's note to me today.
Dear Sir,
I have now reviewed your case and my response is as follows:-
The compensation for the mis-sale of PPI constitutes an asset which exists at the point the mis-sale occurs. In the same way that if you had a bank account with savings in before proposing your TD, the creditors would have expected you to introduce these funds into your TD as an asset.
I appreciate that you may not have realised that this specific asset existed when you signed your TD and that it is, therefore, unlikely that you were attempting to mislead your creditors; however the fact remains that these funds must be paid to me in my capacity as former Trustee of your TD.
Although these funds may not have been realised until after the completion of your TD, the Trustee's powers continue to exist after the completion of your TD.
The only point that is relevant in this case is that the mis-sale of PPI pre-dates your TD and is therefore an asset of the TD; the fact that this asset, which existed prior to the commencement of your TD, was not realised until after its completion is, therefore, irrelevant.
These funds must be paid to me for the benefit of your creditors whose claims have been proved in your TD.
This is my final response, however if you are in anyway dissatisfied with this response you are well within your rights to seek independent advice (and please provide a copy of this letter to whomsoever you see), alternatively you may take your complaint to my licensing body the IPA via the Insolvency Gateway here: http://www.insolvency-practitioners.org.uk.
My question :
Is there any one who actually knows where the law stands or have cases like mine still to be proven and contested in court against former Trustees.
Any advice would be welcome, thank you.
24/02/2015 8:13 pm
Hi Racingshell.
No legal experts here I'm afraid. Just debt advisers and insolvency professionals - so if you want legal advice specifically you'll need to source it elsewhere I'm afraid.
This subject arose here recently. Other types of personal insolvency in the UK can be reopened to capture an asset that was previously missed. None of us were aware of this having happened with a trust deed.
It seems to be a potentially legally contentious issue.
Qualified Debt Adviser & Forum Administrator - Ask me anything about Trust Deeds 
24/02/2015 8:50 pm
Hi Racingshell
In my opinion the Trustee is wrong on all fronts. The Trustee, I suspect, is talking about acquirenda which is ( Here's the techie bit) any estate, wherever situated,which is acquired by the debtor on a relevant date; and would have vested in the trustee as if it had been part of the debtor's estate on the date of sequestration.
This entitles the trustee to assets acquired after the trust deed is signed.
I think the point they are missing and a very important critical point is the definition of 'relevant date' in terms of the act to which the trustee refers. This is defined as the 'date after the date of sequestration and before the date on which the debtor's discharge becomes effective. In summary, this can only relate to assets aquired/obtained in between the date of appointment to the date of your discharge.
If the Trustee is not looking at this as acquirenda and advises that the asset existed prior to the signing of the trust deed, then he has no locus to interact with the funds as he has been discharged as Trustee and his powers as trustee do not continue beyond his discharge as he appears to suggest.
Sorry if this is all a bit heavy, but hopefully you'll see the 2 main points are that the PPI does not vest as aquirenda and also the trustee is in no position to deal with the funds or interact with these.
Mark
Mark is not posting regularly in the Trust-deed.co.uk forum.
Topic starter
24/02/2015 9:03 pm
Thank you Mark, I appreciate that insight on those points hopefully as I progress this matter legally I will get a positive result.
24/02/2015 9:24 pm
It appears that the AIB have the same opinion and it may be wise to speak with the IPA on your concerns with the former Trustee advising that he intends to interact with these funds. It may also be an idea to write to the trustee advising of your intentions.
Mark
Mark is not posting regularly in the Trust-deed.co.uk forum.
