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07/01/2012 10:12 pm
From memory, the timings involved in this situation complicate things a little nastynick.
I'm not sure whether we have any legal minds amongst us, but I do hope the poster behind that thread tells us how it all works out.
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08/01/2012 9:07 am
quote:
Originally posted by Trust Deed Assistant
From memory, the timings involved in this situation complicate things a little nastynick.I'm not sure whether we have any legal minds amongst us, but I do hope the poster behind that thread tells us how it all works out.
Perhaps he will tell us more! I'm getting the impression that the situation he claims to be in is one that you experts have never encountered before, and if that is so will the handling of his case become a 'precedent' in law?
08/01/2012 9:58 am
Hi nastynick.
If you read back over the thread from Seany Boy you should see (from the combined comments from Mark, Shona and Kevin) that what can happen in this situation is fairly clear.
While Seany Boy considers that no debt is owed, the pursuer must feel differently if they have chosen to take legal action.
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Topic starter
08/01/2012 10:29 am
quote:
Originally posted by Trust Deed Assistant
Hi nastynick.If you read back over the thread from Seany Boy you should see (from the combined comments from Mark, Shona and Kevin) that what can happen in this situation is fairly clear.
While Seany Boy considers that no debt is owed, the pursuer must feel differently if they have chosen to take legal action.
I have not only read back over, but have studied in detail the various comments, and NOBODY seems to know 'what can happen'!
Unless I'm completely misunderstanding the situation the 'pursuer' is attempting to PERSIST with a court action while simultaneously expecting Seany Boy's Trustee to consider the claim.
SO - here is my own (totally amateur) perception.
Either the pursuer should drop the action and rely on the Trustee or leave the Trustee out (to the benefit of the established creditors) and accept the judgement of a Sheriff.
Given that the Trustee has a heavy responsibility to Seany Boy and his TRUE creditors, what do you people think he should be saying to the pursuer regarding the allegedly spurious claim?
08/01/2012 11:10 am
OK, here is my reading:
Mark explains that the pursuer cannot carry on the legal action now they have submitted a claim to the protected trust deed.
Shona explains that the pursuer will need to provide sufficient proof that the debt exists to the Trustee who will then make a decision.
Kevin explains that either party can appeal a decision, by the Trustee, that they disagree with, to a Sheriff.
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Topic starter
08/01/2012 11:50 am
quote:
Originally posted by Trust Deed Assistant
OK, here is my reading:Mark explains that the pursuer cannot carry on the legal action now they have submitted a claim to the protected trust deed.
I'M SURE MARK 'KNOWS HIS ONIONS', BUT THE PURSUER HAS! SHOULD SEANY BOY'S TRUSTEE BE ASKING THE PURSUER TO DROP THE LEGAL ACTION BEFORE HE WILL ADJUDICATE?
Shona explains that the pursuer will need to provide sufficient proof that the debt exists to the Trustee who will then make a decision.
SHONA'S COMMENT IS FUNDAMENTAL TO THE WHOLE ISSUE. WHY SHOULD A SPURIOUS CLAIM BE ALLOWED TO AFFECT TRUE CREDITORS, AND SHOULD THE TRUSTEE NOT SIMPLY STATE THAT HE WILL ONLY CONSIDER THE CLAIM FOLLOWING A COURT JUDGEMENT? THAT WOULD SEEM TO BE FAIR TO ALL CONCERNED
Kevin explains that either party can appeal a decision, by the Trustee, that they disagree with, to a Sheriff.
BY THE TIME KEVIN'S COMMENTS BECOME RELEVANT THOUGH, THERE MAY HAVE BEEN A ZERO DIVIDEND!!! THAT'S NOT THE WAY PROTECTED TRUST DEEDS ARE SUPPOSED TO GO IF MY UNDERSTANDING'S CORRECT.
AS THE ULTIMATE DECISION RESTS WITH A SHERIFF ANYWAY, WOULD IT NOT BE PRUDENT FOR THE TRUSTEE TO AWAIT A SHERIFF'S HEARING OF THE CASE, PARTICULARLY WHEN THERE IS ALLEGEDLY NO PROOF THAT A DEBT EVEN EXISTS.
THAT WOULD COST THE ESTABLISHED CREDITORS NOTHING WHEREAS MONEY WOULD HAVE TO BE USED BY THE TRUSTEE TO INVESTIGATE THE REPUTEDLY 'DODGY' CLAIM TO THE DETRIMENT OF THOSE CREDITORS
08/01/2012 11:58 am
The pursuer has started legal action. Assuming Mark is correct they can no longer carry it on.
It's the role of a Trustee to validate claims. If this claim is spurious it will quickly be seen as such and rejected.
The appeal process builds a safeguard into the process for all concerned.
I respect your views nastynick, but it doesn't look like we are going to see this the same way.
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Topic starter
08/01/2012 12:39 pm
quote:
Originally posted by Trust Deed Assistant
The pursuer has started legal action. Assuming Mark is correct they can no longer carry it on.It's the role of a Trustee to validate claims. If this claim is spurious it will quickly be seen as such and rejected.
The appeal process builds a safeguard into the process for all concerned.
I respect your views nastynick, but it doesn't look like we are going to see this the same way.
I most certainly respect the views of experts! That's why I'm on here - not to 'make waves' but to use a live case (Seany Boy's) as a benchmark on which to base a very serious decision. I'm not so sure that we see it differently T.D.A!
I am merely asking you specialists for specific answers and so far am merely getting bog standard responses which does not increase my confidence in the Protected Trust Deed process.
I don't dispute any of the points made, but someone - possibly yourself - stated earlier that his case is complex, so I'm curious as to how you consider that 'if this claim is spurious it will quickly be seen as such and rejected'.
Will that speedy and early rejection use up much of the true creditors' money?
Do you see where I'm coming from?
08/01/2012 1:39 pm
I'd suggest you should base your decision on whether or not it is a good match for your circumstances nastynick.
If you appoint a Trustee to handle a trust deed you will be putting a degree of control over affairs such as these into their hands. The same applies with sequestration.
Both options should be seen as a last resort, so presumably if you don't need either of them you will not go there anyway. If one of these options is necessary you'll need to accept the supervisory role that is part of their duties.
I've tried to answer your questions specifically. As you have stated that the answers given have insufficient value to you I'll withdraw from the thread. Others may wish to add further information if they believe it will add to the information already given.
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09/01/2012 10:17 am
To clear up the position regarding the competence of the legal action. I don't believe there is anything to stop the pursuer from continuing with the legal action and the sheriff awarding decree if he/she feels it is valid. The only restriction that a protected trust deed places on the pursuer is that they cannot then use the decree to initiate enforcement action - ie they cannot seek to arrest wages/bank accounts etc.
So there may well be a benefit to the pursuer getting decree if there is an element of doubt as to whether the debt is spurious, as I can't see many trustees refusing a claim backed up by a court decree.
From my reading of Seany Boy's post, however, I presumed the case has now been sisted, ie stopped, as the pursuer has decided to make a claim and I guess feels the action may be superfluous. Therefore the trustee will decide whether the claim is valid, subject to the right of any party to appeal their decision to the Sheriff.
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