Clarke Willmott requesting payment

[leehuk1982]

Hi all,

 

Please can someone help with this? I write this on behalf of my mother.

 

My mums sister recently went bankrupt, however my mum signed a letter from the insolvency service confirming that her sister had giver her £XXXX. The truth is, this didn't happen and my mum was purely trying to protect her sister. My mum now has a letter from Clarke Willmott which reads as follows:

 

 

START OF LETTER

 

Dear Madam,

 

We act for the official receiver who is the trustee of xxxxxxxxx in Bankruptcy.

 

Having considered the details provided by the bankrupt, the trustee has identified that you have received preference. The trustee therefore seeks to restore the position. The liquidator has this right under s.340 of The Insolvency Act 1986.

 

A preference can be described in basic terms as a transaction which places the recipient in a betters siting than they would have otherwise have been in the case of the bankrupt's insolvency, for example, receiving payment of a debt ahead of creditors.

 

We have therefore been instructed by the official receiver to recover the balance of £xxxx from you, being the value of the preference that you have received from xxxxxxx.

 

You are therefore required to make payment of £xxxx. Any payment should be made to Clarke Willmott LLP quoting reference xxxxxx. Details of how to make payment are provided overleaf.

 

If you believe you have a valid reason for disputing this claim you are asked to provide full details to ourselves, quoting reference xxxxxx within 14 days. Details of how to contact us are stated below.

 

END OF LETTER

 

As I said above, my mum has never actually received any money and was simply trying to help her sister, but by doing so has got herself in a spot of bother! What can she now do get out of this? I was of thinking telling them that there had been a mistake in communications to/from them and my mum and that the money was actually a loan to her sister which she repaid over a number of years PRIOR to filing for bankruptcy??

 

Any help would be greatly appreciated! Many thanks in advance,

[Bandit127]

The truth is that your Mum might not have had money from her Sister.

 

But the evidence is that she did, in the form of the signed letter that the Solicitor will bring up in court. I don't think there is any wiggle room here.

 

Be aware that her Sister needs to be very upfront with the OR. If she is seen to be treating creditors preferentially, she could have addition restrictions requested or placed on her bankruptcy. If she is seen to be lying to the Official Receiver, she could be committing a criminal offence.

[BazzaS]

Hi all,

 

Please can someone help with this? I write this on behalf of my mother.

 

My mums sister recently went bankrupt, however my mum signed a letter from the insolvency service confirming that her sister had giver her £XXXX. The truth is, this didn't happen and my mum was purely trying to protect her sister. My mum now has a letter from Clarke Willmott which reads as follows:

 

 

START OF LETTER

 

Dear Madam,

 

We act for the official receiver who is the trustee of xxxxxxxxx in Bankruptcy.

 

Having considered the details provided by the bankrupt, the trustee has identified that you have received preference. The trustee therefore seeks to restore the position. The liquidator has this right under s.340 of The Insolvency Act 1986.

 

A preference can be described in basic terms as a transaction which places the recipient in a betters siting than they would have otherwise have been in the case of the bankrupt's insolvency, for example, receiving payment of a debt ahead of creditors.

 

We have therefore been instructed by the official receiver to recover the balance of £xxxx from you, being the value of the preference that you have received from xxxxxxx.

 

You are therefore required to make payment of £xxxx. Any payment should be made to Clarke Willmott LLP quoting reference xxxxxx. Details of how to make payment are provided overleaf.

 

If you believe you have a valid reason for disputing this claim you are asked to provide full details to ourselves, quoting reference xxxxxx within 14 days. Details of how to contact us are stated below.

 

END OF LETTER

 

As I said above, my mum has never actually received any money and was simply trying to help her sister, but by doing so has got herself in a spot of bother! What can she now do get out of this? I was of thinking telling them that there had been a mistake in communications to/from them and my mum and that the money was actually a loan to her sister which she repaid over a number of years PRIOR to filing for bankruptcy??

 

Any help would be greatly appreciated! Many thanks in advance,

 

She is stuck. She can try to explain she lied previously, but then the Trustee in Bankruptcy can reasonable state "how do we know which is the lie and which the truth, as they are both signed letters".

 

To add further lies to the current lie is a bad idea (IMO) : what about when the ask for any documentary proof of "the loan"?. You won't be able to produce it, (given it appears there wasn't one), and they'll conclude it is further lies, and the most likely truth is that there was a creditor preference and they'll ensure they seek the money back from your mother.

 

Try honesty. Explain why the previous letter was a lie, and hope that the truth rings true and they let your mum off the hook.

Further lies are likely to remove any possibility of that happening.

[BazzaS]

Hi all,

 

Please can someone help with this? I write this on behalf of my mother.

 

My mums sister recently went bankrupt, however my mum signed a letter from the insolvency service confirming that her sister had giver her £XXXX. The truth is, this didn't happen and my mum was purely trying to protect her sister. My mum now has a letter from Clarke Willmott which reads as follows:

 

 

START OF LETTER

 

Dear Madam,

 

We act for the official receiver who is the trustee of xxxxxxxxx in Bankruptcy.

 

Having considered the details provided by the bankrupt, the trustee has identified that you have received preference. The trustee therefore seeks to restore the position. The liquidator has this right under s.340 of The Insolvency Act 1986.

 

A preference can be described in basic terms as a transaction which places the recipient in a betters siting than they would have otherwise have been in the case of the bankrupt's insolvency, for example, receiving payment of a debt ahead of creditors.

 

We have therefore been instructed by the official receiver to recover the balance of £xxxx from you, being the value of the preference that you have received from xxxxxxx.

 

You are therefore required to make payment of £xxxx. Any payment should be made to Clarke Willmott LLP quoting reference xxxxxx. Details of how to make payment are provided overleaf.

 

If you believe you have a valid reason for disputing this claim you are asked to provide full details to ourselves, quoting reference xxxxxx within 14 days. Details of how to contact us are stated below.

 

END OF LETTER

 

As I said above, my mum has never actually received any money and was simply trying to help her sister, but by doing so has got herself in a spot of bother! What can she now do get out of this? I was of thinking telling them that there had been a mistake in communications to/from them and my mum and that the money was actually a loan to her sister which she repaid over a number of years PRIOR to filing for bankruptcy??

 

Any help would be greatly appreciated! Many thanks in advance,

 

I've replied to your identical other thread :

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?431523-Help-regarding-bankruptcy&p=4600251#post4600251

 

There are other replies on that thread too : it may be worth sticking to one thread to avoid duplication or people on one thread missing info on the other.

 

Site team: worth merging the two?.

[citizenB]

Two threads on same issue, merged as requested.

 

I will leave S.O.S for site team as well.

[leehuk1982]

Thanks for your responses and for the merging of the two posts.

 

Here's the letter that I've prepared to send back as I feel that we need to do something to try to clear this mess up:

 

START OF LETTER

 

Dear sir/madam,

 

I write to you regarding the above reference number and in response to your letter dated X August 2014, as well as the request to put my dispute in writing as per my telephone conversation with your offices on X August.

 

There appears to be a misunderstanding on your part regarding monies paid to myself by xxxxxxx [mums sister].

 

I lent xxxxxx sums of money during the course of c.5 years. She was a struggling single parent, and being a sibling I did what the right thing was to do at the time. All monies were paid back to myself by Xxxxx during the same time frame.

 

Xxxxxx's bankruptcy has come at a time after monies were paid back to me; I was the rightful 'creditor' to her during the time that monies were owed to me, I have not received any additional payments during the lead to her bankruptcy, nor have I received any payments after bankruptcy was filed.

 

Your request under section 340 of The Insolvency Act 1986 therefore does not apply and I firmly request that you seek such monies owed direct from xxxxxxxx herself.

 

I am a 60 year old lady of ill health who no longer works, so you can imagine what effect this is having on my health when a demand is received on my doorstep for monies that I do not owe.

 

As of today's date, I expect no further communication from you surrounding xxxxxxx's bankruptcy and I expect you to deal directly with xxxxxxx for any monies owed to her creditors. Should further communication be sent to me, I will be forced to take legal action against your company.

 

Yours sincerely,

 

 

END OF LETTER

 

 

Any thoughts???

[BazzaS]

Thanks for your responses and for the merging of the two posts.

 

Here's the letter that I've prepared to send back as I feel that we need to do something to try to clear this mess up:

 

START OF LETTER

 

Dear sir/madam,

 

I write to you regarding the above reference number and in response to your letter dated X August 2014, as well as the request to put my dispute in writing as per my telephone conversation with your offices on X August.

 

There appears to be a misunderstanding on your part regarding monies paid to myself by xxxxxxx [mums sister].

 

I lent xxxxxx sums of money during the course of c.5 years. She was a struggling single parent, and being a sibling I did what the right thing was to do at the time. All monies were paid back to myself by Xxxxx during the same time frame.

 

Xxxxxx's bankruptcy has come at a time after monies were paid back to me; I was the rightful 'creditor' to her during the time that monies were owed to me, I have not received any additional payments during the lead to her bankruptcy, nor have I received any payments after bankruptcy was filed.

 

Your request under section 340 of The Insolvency Act 1986 therefore does not apply and I firmly request that you seek such monies owed direct from xxxxxxxx herself.

 

I am a 60 year old lady of ill health who no longer works, so you can imagine what effect this is having on my health when a demand is received on my doorstep for monies that I do not owe.

 

As of today's date, I expect no further communication from you surrounding xxxxxxx's bankruptcy and I expect you to deal directly with xxxxxxx for any monies owed to her creditors. Should further communication be sent to me, I will be forced to take legal action against your company.

 

Yours sincerely,

 

 

END OF LETTER

 

 

Any thoughts???

 

If I received that letter from your Mum, since it doesn't address at all why your Mum had said she'd received monies from your sister - I'd reply: "you state that you will take legal action against us, but we have the right to recover the monies you said she gave you, in your signed latter of , under the statutory legislation prohibiting preference of creditors"

 

She lied, and wrote to them stating that lie. She has to address that lie ; Coming on strong to them, while ignoring the previous lie, invites them 'going legal'.

If it went to court they'll produce the letter your Mum wrote: then what cause of action do you intend to rely on to threaten them with legal action?.

If you want to claim 'fairness' : "He who comes to equity must come with clean hands"

 

http://en.wikipedia.org/wiki/Maxims_of_equity#He_who_comes_into_equity_must_come_with_clean_hands

[leehuk1982]

So do you think it's best to be more open and honest and state the reason for lying (I.e. To get her sister out of some **** (or so she thought)), and to also invite them to investigate any accounts of my mums so that they can physically see that no money has been received into her accounts? They also ought to investigate my mums sisters accounts cos then they'll see that no money left her account for the said amount.

 

What would you do? Mum's ****ting herself now bless her, and I know she meant good, but she's just created bigger problems for herself

[unclebulgaria67]

I really don't understand why your Mum signed a letter stating that she had received a sum from her bankrupt sister.

 

Did she actually say when she received the money ?

 

Remember that the official receiver is a court appointed official. I should imagine that if someone deliberately gave them false information, that it would be a criminal offence. So nothing that is now said to Clarke Wilmott should be knowingly untrue.

 

I am not sure about whether it would be criminal office to give false information to the Insolvency Service. Perhaps you should get some legal advice about this, before a reply is sent off. Your Mum does not want to stitch herself up by saying the wrong thing in a letter.

 

Don't know where you would get such legal advice. Citizens Advice, Stepchange or National Debtline may be able to find out for you.

[leehuk1982]

She signed it because she thought she'd be helping her sister in some way. Both me and my partner warned her not to send it off, but stupidly she did!

 

I appreciate your reply, and I think that we'll seek to get her some legal advice before going any further forward.

 

Thank you,

[unclebulgaria67]

She signed it because she thought she'd be helping her sister in some way. Both me and my partner warned her not to send it off, but stupidly she did!

 

I appreciate your reply, and I think that we'll seek to get her some legal advice before going any further forward.

 

Thank you,

 

Sensible step to get the advice first. If needed I expect she can say that she is suffering from ill health and gave wrong information in confusion. She may need to provide copy bank statements showing that she had not received any sum. But it does depend on what was exactly said by your Mum and her Sister. Anyone offering legal advice will want to know the whole situation.

[citizenB]

IMHO, it would be worth speaking to someone at National Debtline -

 

https://www.nationaldebtline.org/EW/Pages/default.aspx

[steampowered]

Let's start by understanding the law. Have a read of http://www.legislation.gov.uk/ukpga/1986/45/section/340.

 

The law basically says that when someone becomes bankrupt, all of their creditors should be treated equally. One creditor should not receive full payment since that would reduce the size of the assets for other creditors. If this happens, the bankruptcy trustee is entitled to seek a court order that the payment is refunded in order to be distributed to the other creditors.

 

I do not think saying the money was a loan helps your mum. Have a read of sub-section (5) in the link. This says that where the bankrupt and the creditor are related parties, it is actually presumed that the payment is a preference and the burden of proof would be on your mum to prove otherwise. The bankruptcy trustee can seek to reverse payments made in the 2 years before bankruptcy.

 

Why did your mum sign a letter saying that she received money from your sister? It is very difficult for us to understand the situation unless we know the reason why she signed the letter.

 

Either way this is a slightly sticky situation but I think it can be resolved. Your mum will either have to admit to lying to the official receiver (which actually might not be a disaster if she can come clean and explain why she signed the letter), or she will have to accept that she is liable to refund this money.

 

When responding to the official reciver I suggest being truthful because if the bankruptcy trustee decides to take this to court everything will come out in the wash. It may be that the best approach is to say that no money was received and explain why the letter was signed.

 

I think the sentence in your letter which threatens to take legal action is too aggressive and I think it makes your mum look like she has something to hide. This situation is of your mum's own making so I think she has to take some responsibility. It is important for her to start building some credibility with the official receiver and appearing reasonable/honest if she wishes to avoid further action being taken.

[debtinfo]

In my experience at the official receivers office the biggest number of prosecutions is for lying to the official receiver and court rather than for the original handling of the monies that are unaccounted for. Most offences in bankruptcy such as gambling or disposing of assets etc are dealt with via civil courts and the bankruptcy restriction measures these days.

 

So the best way forward is almost always to be truthful what ever was the original offence your mothers sister was trying to cover up. It is best to limit the damage and fess up now.

 

They already realize there is money missing from the equation and that is why they are asking these questions. do you think they are just going to stop without proof? They wont,if they have not already they will interview your mothers sister at the office and write down every word she says. she will have to sign that document right under a big paragraph which explains that lying in that document is an offence under the perjury act punishable by up to 2 years in prison.

 

If they are still suspicious then they will call in the BIS inspectors who will come to the office and interview her under caution. is she going to maintain the same lie then? What about when they start the prosecution and she has to repeat the same details in court in front of the judge.

 

honesty really is the best option regardless of what they are trying their hardest to cover up