Thanks for the reply Chris. We have spoken to the firm and agreed a settlement figure, (just short of £10K). A third party had offered to loan us that figure, but this was based on him selling one of his flats. He offered this last year and was obviously confident of a sale by now. Unfortunately that hasn't happened yet. We would want to keep our home. This is reflected on the lengths we have already gone to, to keep up the payments. I'm running out of ideas as well as time now.

Hi BrianR.

If you have a firm offer of help that your Trustee can verify in some way they may well be prepared to give you some time.

I thought it was a firm offer tda, but his property has been on the market for 8 months. It doesn't seem too firm now. I know the horse has bolted, but am I entitled to at least ask the firm why my wife was given a ptd whilst, and still is unemployed? I feel I should as she shouldn't have been given one and I'm angry about the debt we are in because of it. Thing is though, if I'm asking for time, then challenging their decision may influence this. I'm intrigued to know as well, I can understand the firm recommending a ptd, but doesn't it go for creditor approval based on their figures. Why would creditors accept an unemployed person for a ptd?

Hi BrianR.

I'd be speculating if I suggested why the creditors agreed to your wifes protected trust deed. In general creditors base their decision on what will be the best commercial outcome for them, which in this instance I suppose a likely alternative was bankruptcy.

I understand your dilemma between wanting answers but also potentially asking for some time to raise a lump sum. You'll be the best judge in terms of which issues you want to address at what point in time.

I presume that if equity in your house formed part of the proposals then there was judged to be enough coming in to the trust deed regardless of your wife being unemployed.

It could be that your trustee may take less than the £10k that was agreed if you have no way of getting the money together. The last thing they will want to do is to force a sale of your property as there is no guarantee that it would achieve a decent return - especially given the possible court costs etc involved.

The other option you could consider is mortgage to rent, if there is no other alternative that you can see.

For me it doesn't make sense Kevin. The equity part, I have no issue with at all. There were two separate trust deeds. Aren't they taken on their own individual merits? Why does someone (my wife)who has never worked before or during the term of the ptd, pay the same contribution as me who was working for most part of the ptd? We never bought any luxuries with the loans we got. So what we are left with is, almost in effect paying three times. We have paid her contribution, borrowed 3/4 of that contribution to afford to pay it, and now have to find roughly the same amount to pay off her share of the equity. I have sent updated accounts of our income and expenditure to the firm periodically during the term. I have never earned more than £10k during the term and rely on tax credits. My (our) contributions have never gone down. I appreciate there is room for discretion, but I just can't get my head around the conflicting information about ptds. I have never seem anywhere that a person can be accepted for one who is unemployed.

Hi BrianR

The Accountant in Bankruptcy clearly states that contributions should not be taken from benefits and generally this appears to be the accepted norm. Unfortunately some firms will set up a Trust Deed and take payments from means tested benefits/child benefit etc. I think Reidy1982 is a good example of how things should not be done.

If it was a sequestration then Social Security Administration Act specifically states, in law, that a Trustee cannot take benefits as contributions, however the act is specific to sequestration.

It is perhaps all about how things are set up. If there is equity in the property in which your wife has a half share then the logical solution would be to use the equity as the bargaining tool rather than the contribution and equity.

The main issue is that the Social Security Administration Act SPECIFICALLY outlaws payments from benefits, however the PTD Regulation, SIP3a guidance, AIB guidance etc which Trustee's work or should work under, dont.

Mark

Thanks Mark. Any advice on where I go from here? Is there any point in challenging the firm, ie ask why we (she) were given a ptd in the first place? I know I'm clutching at straws, but I'll do whatever it takes to keep my home. My wife is currently studying-prospects look good, so our future seems to taken care of. Once she is qualified I can go back to the field I am qualified in. ( I only took the job I am currently in to give her the opportunity to study). Unfortunately out present isn't so good. In my mind my wife has paid her share of the equity. She shouldn't have been paying a monthly contribution, but did. Maybe not legally, but economically and morally, she shouldn't pay any more.

Hi BrianR.

Perhaps the problem here is that even if you were to "win" the argument that your wife should not have been advised to or allowed to enter a trust deed, you cannot turn back the clock. As the trust deed has gone ahead it places responsibilities on your wife, her Trustee, and her creditors.

The Trustee is also well positioned to counter-argue that a trust deed is a voluntary process, and that your wife chose to go ahead with a trust deed on these terms.

So what is their responsibility by overseeing the process? Voluntary or otherwise, it still needs approval. I know our argument is ignorance, as in we thought this was a joint ptd,and didn't know what the stipulations were for approval, but surely they can't have carte blanche to approve anyone for a ptd. For me they were acting on self interest, not for the benefit of the creditors, as it should be. My wife's and possibly both our ptds could have failed at any point, and would have without borrowing. If the payments taken at the beginning of a ptd are for fees, then for who's benefit was this approved for? As I said previously too, I would be interested to know what information was presented to our creditors for their approval. Is it not black and white to refuse an unemployed person for a ptd? We didn't hide her unemployment from the trustee. They knew.

Hi BrianR.

Why don't you ask for a copy of the the proposal that was sent to each of your creditors?

I think you're well within your rights to see this.

Thanks tda, that's what I'll do. Maybe I'm picking things up wrongly here, but it seems quite one sided in favour of the trustee. If we can't pay, then it fails. If we are given wrong direction then they can argue it was voluntary on our part. It's as if they can't be held accountable for what seems, bad practice.
Thanks again for the advice.

Hi BrianR.

I think there are different opinions about practice when it comes to taking trust deed contributions from benefits.

The experts representing a few IP firms that write on this site tell us they wouldn't do it. I think their view is probably representative of the majority of the industry.

We have however heard of two well-known firms that appear to be happy to do this (on pretty recent cases). They're subject to inspection by their regulators, so I'd imagine they have formed the view that it is OK for trust deed contributions to be paid from benefits and that they can defend this position if challenged.

Maybe not the experts personally... Although in fairness, the person who wrote up the trust deed has now retired from that firm. If it's legal then fair enough, but it shouldn't be. A trust deed's contribution should be from disposable income. Benefits don't fall into the category of disposable income, rather basic living expenses to prop up low salaries. Clearly self evident in our case as we had to borrow to pay it. There has to be across the board rules and not just guidelines for ptds. We are in debt in order to pay into something to become debt free. That shouldn't ever happen.

Hi BrianR.

I don't think that there will be a person reading this who will be comfortable that the advice you received has truly helped to alleviate the financial problem as it should have.

I agree with your point about benefits being designed to cover needs, rather than the provision of a surplus to deal with debts or debt solutions.

With hindsight, what would you now consider to have been the correct advice when you first sought help?

I think there has often been a feeling amongst posters in this forum that trust deeds should be more rules-based and consistent between practitioners. The feedback at times from the experts that write here is that this would be impractical to some degree as, in reality, so many situations are "shades of grey" rather than being "black or white".