can Trustee Sols reclaiim money paid to me 6mts before client declared BK?

[Johnnyc]

Hi,

 

I need some help or advice if possible.

 

I loaned my brother £20k and have proof of this

- this amount was to be repaid when he got a payout from his redundancy and we agreed that as the security.

He was paid his redundancy in Feb 2013 and paid me back in March 2013 in full.

 

In September 2013 he went bankrupt after his marriage failed and he lost his house,

The Trustee is now trying to recover the money which was paid to me as he states this has should have been kept for all his creditors.

 

I had absolutely no knowledge that he was going to go bankrupt and he was not aware of how much his debts were at that time.

I am absolutely furious that this has happened and I have only been repaid what was owed.

 

I do not have that much money now without remortgaging my house and this can be evidenced.

I do not feel that I should repay any money to the trustee as I have only been repaid what I loaned in the first place.

 

I cannot afford big legal bills to fight this but I do not feel that I owe the trustee any money at all.

 

What can he do or what are my best options.

I would appreciate any advice.

[dx100uk]

don't think theres anything he can do to you.

 

the money was repaid to you before bk was even muted?

 

I think the trustee is chancing his arm you are a bit thick!

 

dx

[Johnnyc]

Not according to the trustee's solicitors - they can reclaim money going back 3 years?

[dx100uk]

ok not my strong point

 

i'll go ask the team...

 

dx

[sequenci]

Hello there.

 

When you brother was paid his redundancy money he should have distributed that payment on a pro-rata payment basis amongst all of the creditors. The fact that he paid you ahead of the other creditors has placed you in a preference to those other creditors. The trustee is able to apply to have the payment made to you set aside - so long as the payment was made within two years prior to the bankruptcy (your brother would be classed as 'an associate').

 

The only chance you have is that your brother would need to be able to prove that the payment made to you was not made with any desire to put you in a more favourable position than the other creditors. In addition, it would also help if your brother can prove that he was NOT insolvent at the time of the transaction.

 

You're going to need legal advice from an insolvency specialist, from the information provided I think it's going to be an uphill struggle for you I'm sorry to say.

[dx100uk]

great info

 

thank you

[sequenci]

No worries matey, here's the technical info: http://www.insolvencydirect.bis.gov.uk/technicalmanual/Ch25-36/Chapter31/part4A/Part%202/Part%202.htm

[Johnnyc]

Hi

 

Thanks for the advice. He wasn't putting me in a favorable position - only returning money which was loaned.

 

At the time of repayment he had no idea how much he was in debt - this only came to light later in the year. It was at that point that he decided to go bankrupt because of the demands of the banks.

 

Alsoif I had to repay this it will cause me severe hardship as i am now retired and do not have any significant earnings

[sequenci]

Did he have other creditors too? I'm assuming they would have wanted their money back too?

[Johnnyc]

I believe that the other creditors were mainly the Northern Rock and the Halifax who loaned the money secured on his property. I am certainly not being put in any preferential state by having my money returned and would not have loaned him it if I was not fully aware of how much redundancy was going to be paid. At the time he paid me back the house was not sold and he therefore had no idea of how much he owed in total. It was only when the house was sold and the shortfall came to light that he had no option but to go bankrupt. My point is how did this put me first?

How much power does the Trustee have if I prove I do not have that much money now and it would place me in the position of having little money left for my retirement?

[sequenci]

Hi Johnny,

 

Preference is assumed as you're an 'associate' [i.e. a close family member] - as such the onus is on you to rebut the presumption.

[Johnnyc]

Any idea how i do that?

[sequenci]

Any idea how i do that?

 

Your brother will need to be able to prove to the trustee that it wasn't he intention to put you before the other creditors he has.

[Johnnyc]

Can he do that by just making a statement and having in signed by a solicitor?

 

He didn't know how much he owed so how could he have made me a preference?

[Johnnyc]

Hi

 

The OR is now taking me to court for the £20K - I do not have that much money now and therefore can't pay it back - what can the courts do now?

[stu007]

Hi Johnnyc

 

Have you received any court paperwork yet or just the letter from the OR stating their intentions?

 

Has the OR given you a full explanation for this decision?

 

Do you have a paper trail of all your dealings with the OR?

[*RainbowTears*]

What I don't get is the following;

 

Johnny had £20k in his bank (I.E his savings from wages etc)

 

Johnny lent "his savings" to his brother for "whatever purpose".

 

The brother repaid Johnny back the £20k.

 

6 months later Johnnys brother went bankrupt.

 

So on them facts alone why should Johnny have to give his own savings to pay off his brothers debts?

 

It's like saying Mr A lives the highlife, runs up debts all over the place, he then goes bankrupt & the OR wants Mr A brother to repay those debts!!

 

It was "never" Johnnys brothers £20k at any stage. Say for instance Johnny had never lent him the money in the first place, would the OR look to Johnny to repay his brothers debts?

 

Surely this cannot be right. As a person who has saved up any income & has savings, that is their own money & can be used for whatever they like.

 

I've lent money myself to family & friends in the past (mostly paid back). So if any off them went bankrupt, would I also be expected by the OR to repay back my own money to cover their debts?

 

It sounds totally bonkers!!

 

Edited to add; Johnny can you prove the £20k was in your bank before you lent your brother the money? And likewise once the £20k was repaid back?

[Bandit127]

Johnny was a creditor just like Northern Rock, which his brother also owed money to (although it hadn't yet all become due). And Johnny (in the eyes of the receiver) should have a pro rata portion of his debt paid back (once the estate is wound up and the OR gets his generous slice of it).

 

Family or otherwise.

[CrappoMan]

...The OR is now taking me to court for the £20K...

 

Is the OR wanting the WHOLE 20k or just the "pro-rata" portion of it ?

 

I would suggest that you get some proper legal advice.

[*RainbowTears*]

Johnny was a creditor just like Northern Rock, which his brother also owed money to (although it hadn't yet all become due). And Johnny (in the eyes of the receiver) should have a pro rata portion of his debt paid back (once the estate is wound up and the OR gets his generous slice of it).

 

Family or otherwise.

 

Thank you Bandit.

 

But surely if that is the case, no one will be wanting to lend money to family or friends just in case sometime in the future they go bankrupt!

 

As most people do have debts of one sort or another, Inc; mortgages, credit cards, car finance & bank loans etc. That's life!

 

None off us can predict the future, I.E to say that your marriage will fail, you get run over, become ill & so on.

 

So on that basis, why would Johnny who 6 months before his brothers bankruptcy, have to think; well hold on here, if I lend my brother £20k of my hard earnt savings & he repays me back, I'm going to have to hand it over to the OR in the future once he goes bankrupt. (That's ridiculous as Johnny would have no way of predicting the future)

 

Johnny did NOT run up his brothers debts, nor did he go bankrupt, so why should he have to hand his life savings over to cover them?

 

Say for example Johnnys brother borrowed £20k from a bank. He then repaid the loan back. 6 months later he goes bankrupt, will that also mean the bank has to give the £20k to the OR, simply because they lent him the money?? (Can see a bank saying yes to this, not!! lol)

 

It still sounds absolutely bonkers to me, as there was no way anyone who lent Johnnys brother money, would know he was going to go bankrupt in the future!!

[debtinfo]

There is no point going round in circles on this what is sorely lacking in all this is any facts.

 

What we actually need to know is this at the point that the 20K was paid back what exact debts did he have (whether big or small), Were all of the current payments on these up to date. Had there been any defaults. if the only debts were secured were they up to date, was there their sufficient security to cover those debts, if so why was there a shortfall 6 months later. what changed in that period.

[Johnnyc]

Hi,

 

At the point that he paid me the £20k back, he was not aware of how much the secured debts were and he had no idea that he was going to go bankrupt at that time. The secured debts were obviously on the property and he was not aware of the house value nor indeed had any intention to sell the house at that time. He went through an acrimonious separation and divorce as well as a nervous breakdown, and the pressure in him were so much that he decided to go bankrupt after taking advice from the CAB.

 

I can prove that I have loaned him an awful lot more than 20K over the years and it grieves me greatly that the OR thinks it can take back money from me which was always mine - there must be some type of defence against this.

[debtinfo]

To give you a proper answer you need to answer the questions the questions that i asked, as i asked them.

[Johnnyc]

When he paid me the £20K which was six months before his bankruptcy:

 

1. He did not know the extent of his debts - around 20K unsecured and the secured debts which were not known

 

2. He had no plans to go bankrupt at that time

 

3. When he got his payout from his job , I put immense pressure on him to repay me as it had left me short and was proving to be troublesome in our relationship

 

4 The house had been recently repossessed but had not been sold

 

5 I was not prepared to wait any longer for my money - I had loaned him far in excess of £20K but pressed him for at least £20K

 

6. I still fail to see how the OR can ask me for my money

 

That is what I need advice for - if anyone can help me it would be appreciated greatly - As said previously why would anyone help family if the OR can take your money from you when the debts were absolutely nothing to do with me!!!

[debtinfo]

Sorry, i have sympathy for you, but if you dont answer the questions i have asked then there is little anyone can do to help. If you go into a court case and just say "i dont see why the can do this" then you are going to lose. you need to know the exact, and i mean exact, circumstances of what he owed, what his assets were and how he was paying those debts when the money was paid back to you.