Opposing an order of sale & possession by a bankruptcy trustee

[Loz84]

Hi Has anyone opposed an order of sale and possession order? My ex, who jointly owns the property that me and our 2 kids live in was made bankrupt in Oct 2011 now that a year has passed his trustee is looking to force a sale. I tried to negotiate to buy his beneficial interst but the trustee wants £40k I offered £16 as I have paid the mortgage and joint securred loan on my own since Jan 2010. I will also be left with the securred loan of £36K. A loan the was taken out to clear some of his debts - he benefitted £30k and I benefitted £6k out of the loan. I have proposed to his trustee that as section 283a of the act doesnt apply - we never married and our property was not his sole or principle residence on the date of his bankruptcy and cos the property does not vest back to him after the three years in fact there is no time limit in which the BT has to deal with the property- me and the kids stay in our hime until our youngest son (14) finishes his education. She has refused this proposal though she has said if I could find prev cases where this has happened she will reconsider. We will use this defence if we have to go to court. Any ideas? Thanks

[sequenci]

Hello there. I think you'll find it VERY difficult to prevent the sale as most cases have favoured the Trustee. The classic starting block, though, is 'Re: Holiday [1981]' which allowed the sale to be postponed until the second child in the family reached 17 years. This is regarded as an exceptional case - especially due to the fact that the postponement wouldn't cause much hardship to the creditors.

 

Since then there have been arguments put forward under the European Convention of Human Rights (Barca v Mears and Donohoe v Ingram). Sadly both cases were not successful. In a nutshell it was felt that moving house wouldn't cause an 'exceptional' circumstance.

 

In short, I think you'll find it very difficult to stop the sale, sorry.

[Loz84]

Thanks for your reply. can you give ma more info on the name if the case you mentioned as the link takes me somewhere else

[sequenci]

Here's a great article for you

 

http://www.lawgazette.co.uk/gazette-in-practice/benchmarks/keeping-it-family

[Loz84]

Thanks for the article and I have read it with great interst, Though it appears that in all the cases the property in question was the bankrupts home (my ex had voluntarily left in 2009) at the time of the bankruptcy or it was the matrimonial home (we never married). If Section 283a doesnt apply as the property wasn't the home of the bankrupt, their spouse or ex spouse on the date of the bankruptcy then there is no time limit within which the BT has to deal with the property as it will not vest back to the bankrupt so our proposal is to remain in the property as previously said. Surely this should carry some weight ?

[Banking on change]

Hello there. I think you'll find it VERY difficult to prevent the sale as most cases have favoured the Trustee. The classic starting block, though, is 'Re: Holiday [1981]' which allowed the sale to be postponed until the second child in the family reached 17 years. This is regarded as an exceptional case - especially due to the fact that the postponement wouldn't cause much hardship to the creditors.

 

Since then there have been arguments put forward under the European Convention of Human Rights (Barca v Mears and Donohoe v Ingram). Sadly both cases were not successful. In a nutshell it was felt that moving house wouldn't cause an 'exceptional' circumstance.

 

In short, I think you'll find it very difficult to stop the sale, sorry.

 

Could it be argued and carry more weight that its not as simple as "moving" home if there would be no way in which the occupier could purchase a new home due to lack of equity or lack of enough income to get another mortgage. The consequence then being made homeless?

 

I'm now looking at this situation too as a friend has just been made aware of her ex husbands bankruptcy and is very worried about losing her home too. She has two dependants and will not be able to get another mortgage even though she is currently able to maintain her current mortgage on her own.