Repo hearing today, judge was quite alarming!!!

redfraggle76

Had our repo hearing today & the judge said that any shortfall inthe sale of property wouldn't be included in br as br was in dec & house hasn't been sold yet!!!!
Spoke to or when i got home & she said that it would be as the mortgage was taken out before br so it doesn't matter when it is sold.
Judge also said that he was making an "award" to capstone to enable them to chase us years down the line if they wanted to!!!
Again or said she had never heard of this before but would double check & call me on Monday.
She asked for the name of the judge so ive no idea what that means!!!
Any body out there who could help me sleep better tonight!?!

completemess

Oh my god, your post has worried me sick. I thought it was included in the br once house is repossessed as a matter of course???

My mortgage is with Capstone too. How soon after them telling you they were going for repossession were you in court if you don't mind me asking xx

tigerfeet2006

Bumping so that Fermi and Bat and some of the experts might see this.

Your OR is right that it is included in your BR but I have never heard of this 'award' thingy.

Sounds like s/he hasn't had any for a while.

blind-as-a-bat_2

any liabilaty before br is included, its well documented that you are covered as long as you did not sign anything to agre to be liable to the shortfall after your BR, even then that is dubious in law

Judges are well known not to know the facts, it may seem odd, but they dont know there ar se from there elbow, unless you show them the legaslation, many judge on what they think is correct, which it is not on far too many ocasions.

there is a very long and very concise bit of text proving so i could post if you want, but its not an easy read, or you can just take my word for it if you want:p

blind-as-a-bat_2

In summary, what the regulations mean is that if you sell a property after being declared bankrupt then any shortfall is included in your bankruptcy. There was some confusion as to whether you had to declare bankruptcy after the shortfall was realised for it to be included.

Regards

Rich_S



380. Introductory
The next five sections have effect for the interpretation of the provisions of this Act which are comprised in this Group pf Parts; and where a definition is provided for a particular expression, it applies except so far as the context otherwise requires.
381. "Bankrupt" and associated terminology
(1) "Bankrupt" means an individual who has been adjudged bankrupt and, in relation to a bankruptcy order, it means the individual adjudged by that order.
(2) "Bankruptcy order" means an order adjudging an individual bankrupt.
(3) "Bankruptcy petition" means a petition to the court for a bankruptcy order.
382. "Bankruptcy debt", etc
(1) "Bankruptcy debt", in relation to a bankrupt, means (subject to the next subsection) any of the following -
(a) any debt or liability to which he is subject at the commencement of the bankruptcy.
(b) any debt or liability to which he may become subject after the commencement of the bankruptcy (including after his discharge from bankruptcy) by reason of any obligation incurred before the commence- ment of the bankruptcy,
(c) any amount specified in pursuance of section 39(3)(c) of the Powers of Criminal Courts Act 1973 in any criminal bankruptcy order made against him before the commencement of the bankruptcy, and
(d) any interest provable as mentioned in section 322(2) in Chapter IV of Part IX.
(2) In determining for the purpose of any provision in this Group of Parts whether any liability in tort is a bankruptcy debt, the bankrupt is deemed to because subject to that liability by reason of an obligation incurred at the time when the cause of action accrued.
(3) For the purposes of references in this Group of Parts to a debt or liability, it is immaterial whether the debt or liability is present or future , whether it is certain or contingent or whether the amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion; and references in this Group of Parts to owing a debt are to be read accordingly.
(4) In this Group of Parts, except in so far as the context otherwise requires, "liability" means (subject to subsection (3) above) a liability to pay money or money's worth, including any liability under an enactment, any liability for breach of trust, any liability in contract, tort or bailment and any liability arising out of an obligation to make restitution.
383. "Creditor" "security", etc
(1) "Creditor" -
(a) in relation to a bankrupt, means a person to whom any of the bankruptcy debts is owed (being, in the case of an amount falling within paragraph of the definition in section 382(1) of "bankruptcy debt", the person in respect of whom that amount is specified in the criminal bankruptcy order in question), and
(b) in relation to an individual to whom a bankruptcy petition relates, means a person who would be a creditor in the bankruptcy if a bankruptcy order were made on that petition.
(2) Subject to the next subsections and any provision of the rules requiring a creditor to give up his security for the purposes of proving a debt, a debt is secured for the purposes of this Group of Parts to the extent that the person to whom the debt is owed holds any security for the debt (whether a mortgage, charge, lien or other security) over any property of the person by whom the debt is owed.
(3) Where a statement such as is mentioned in section 269(1)(a) in Chapter I of Part IX has been made by a secured creditor for the purposes of any bankruptcy petition and a bankruptcy order is subsequently made on that petition, the creditor is deemed for the purposes of the Parts in this Group to have given up the security specified in the statement.
(4) In subsection (2) the reference to a security does not include a lien on books, papers or other records, except to the extent that they consist of documents which give a title to property and are held as such.
384. "Prescribes" and "the rules"
(1) Subject to the next subsection "prescribed" means prescribed by the rules; and "the rules" means rules made under section 412 in Part XV.
(2) References in this Group of parts to the amount prescribed for the purposes of any of the following provisions -
section 273;
section 346(3);
section 354(1) and (2);
section 358;
section 360(1);
section 361 (2); and
section 364(2)(d),
and references in those provisions to the prescribed amount are to be read in accordance with section 418 in Part XV and orders made under that section.
385. Miscellaneous definitions
(1) The following definitions have effect -
"the court", in relation to any matter, means the court to which, in accordance with section 373 in Part X and the rules, proceedings with respect to that matter are allocated or transferred;
"creditors petition" means a bankruptcy petition under section 264 (1)(a);
"criminal bankruptcy order" means an order under section 39(1) of the Powers of Criminal Courts Act 1973;
"debt" is to be constructed in accordance with section 382(3);
"the debtor" -
(a) in relation to a proposal for the purposes of Part VIII, means the individual making or intending to make that proposal, and
(b) in relation to a bankruptcy petition, means the individual to whom the petition relates;
"debtor's petition" means a bankruptcy petition presented by the debtor himself under section 264(1)(b);
"dwelling house" includes any building or part of a building which is occupied as a dwelling and any yard, garden, garage or outhouse belonging to the dwelling house and occupied with it;
"estate", in relation to a bankrupt is to be constructed in accordance with section 283 in Chapter II of Part IX;
"family", in relation to a bankrupt, means the persons (if any) who are living with him and are dependent on him;
"secured" and related expressions are to be constructed in accordance with section 383; and
"the trustee", in relation to a bankruptcy and the bankrupt, means the trustee of the bankrupt's estate.
(2) References in this Group of Parts to a person's affairs include his business, if any.

redfraggle76

thank you for the replies, i think the judge needs to read up on the legislations.
Completemess, our experiance with Capstone has not been a pleasent one.
Every year for the last 3 years they have threatened us with repo due to 1 or 2 missed payments, so when we decided to go br we moved out just before the sept payment, fully expecting them to start procedings straight away. We never heard anything from them!!!!
In Nov we rang them to say we were going br, they said they would send out a form for us to sign which we said we wouldn't.
They said if we didn't sign it could be months before they take us to court all the while building up charges.
We finally went to court yesterday, they give you 28days to leave the property if you are still living in it.

redfraggle76

Thanks baab for the advise, if i knew the judges name i would forward it to him!!

completemess

Thanks Redfraggle76 they have been awful with us too. They have instructed their solicitors to start repo last week. They have been slower than I expected which has helped us out but when they have dealt with us I have found them underhand. Hope things get sorted for you sooner rather than later x

debt_doctor

You wouldnt think it possible that a judge could be so ignorant of the law, but its not the first time ive seen or heard such rubbish !

I have pm'd you.

The bit about giving you 28 days to leave is the order of the court. However if you remain there after that date nothing will happen until lender applies for an eviction notice. This could be anywhere from a couple of weeks to many months. If you are trying to obtain council housing under homeless legislation you MUST stay there until eviction.

DD

fiveyearplan

redfraggle76 wrote: »

Thanks baab for the advise, if i knew the judges name i would forward it to him!!

Phone the court and ask who the judge was the day you went BR.

lemma1968

You need to appeal that decision. Speak to OR about the possibility of a appeal and if you would get legal aid for it. He may put you onto an insolvency solicitor for further advice.

Good luck