Creditor not listed in Statement of Affairs (Debtor’s Petition)

cwisd

Hi Folks. First post here so be gentle with me! Grateful for any comments.

I am pursuing a (former) friend through the small claims court for a £1200 debt and they are defending the claim on the basis that they went bankrupt and so the debt is not enforceable. Some facts

- They incurred the debt with me in Aug 2006
- They went bankrupt some time in early 2007
- I had no idea that they had gone bankrupt (and they did not tell me either)

Having looked into the bankruptcy process, I have seen the form 6.28 (Statement of Affairs) in which you have to list all secured and unsecured creditors. The Official Receiver will in turn contact all of those listed to advise them of the bankruptcy petition.

As I was never contacted by the Official Receiver, I cannot have been listed in this Statement of Affairs form. Based on this my question is - Has the debt owed to me survived the bankruptcy process?

Thanks
cwisd

wildheart83

Unfortunately just because a debt hasn't been included in the SOA doesn't mean it's excluded. All that means is that the OR won't have contacted you (which you know already)
Any debts incurred pre BR date are included, you can't choose which ones to include i'm afraid

debtinfo

just to add for completeness

Whilst nearly all debts are included in bankruptcy there are a few exceptions which could apply

is the debt secured against anything,

if the debt was incurred fradulently

if the debt for instance had been awarded for compensation for personal injury

The above are unlikely but thought i would mention them just in case

Nethertheless, you should contact the official receiver in case they want to ask you anything and to add your name to the list of creditors in case there were to be a payout from the bankruptcy, again unlikely but worth doing just in case

cwisd

Thanks for the response, wasn't what I wanted to hear though!

I'm hoping that there is some way round this, as they have been promising promising promising to pay for years and its only now I have initiated court proceedings that I am getting anywhere with it.

Now to find that they (the debt was incurred jointly by a couple) may be able to get away with it is very frustrating. Maybe the fact that only one of them went bankrupt might help me. One of them can plead bankruptcy, the other can't.

debtinfo

in general lending when a debt is owed jointly it is usually owed "jointly and severely" which means that if one goes bankrupt the other would still owe the whole amount. What sort of debt is it, what sort of paperwork do you have for it

cwisd

The debt is for a concert we (me + the wife + the debtor couple) attended in 2006. We had a verbal agreement that I would pay for all of the tickets, hotel rooms and flights (the concert was in Europe) and that they would pay me back. They didn't. Obviously we wanted to stay in the same hotel, travel on the same flight and sit next to each other at the concert so everything had to be done at the same time.

The cost was £700 per couple, and now with interest it is £1200. As everything was done online, as far as documentation goes I have the ticket receipts (in my name, quantity 4), flight confirmations and costs (naming them specifically as passengers) and hotel booking (naming them specifically)

There was nothing to indicate I would not be paid back. In 2004 we went on holiday together. I paid for it on C Card and they paid me back with no problems.

Thanks
cwisd

NeverAgain_2

I think your best bet is to pursue the wife through the small claims court.

Only having a verbal agreement weakens your case, but it doesn't mean such an agreement does not exist, or that it cannot be enforced.

The fact that you've done something similar with the same couple before strengthens your case.

I would restrict the claim to the original amount, as a private individual you are not allowed to charge interest on a loan.

In the happy event a judgment is made in your favour, you can ask the court to consider adding some interest.

alastairq

and they are defending the claim on the basis that they went bankrupt

From what you write, are you presuming that both parties petitioned BR?

Or has just one of them done so?

If only one has done so, then as DI and Never say..pursue the other party through the small claims court.

[BR is an individual process...therefore unless both petitioned BR..together or separately... there will be the other party to pursue...the problem is, finding out which party?

Of course, they themselves may consider that both were BR, when in fact only one petitioned....I would contact them to enquire which Insolvency Office dealt/is dealing with, the BR?

Then contact the OR, to ascertain which party [if not both]petitioned?]

cwisd

Only she went bankrupt, he did not. So I guess he is fair game for the small claims court...

Also (as commented by debtinfo) had it confirmed by the OR regarding debts which survive a bankruptcy. Basically no secured or unsecured debts survive with the exception of

- Debts as a result of a Criminal Bankruptcy or Proceeds of Crime Act
- Any debt which was secured via fraud or fraudulent breach of trust
- Debts which are as a result of a Magistrates Fine for any offence or Child Support Act payments.

I am now liking the debtinfo comment

"when a debt is owed jointly it is usually owed "jointly and severely" which means that if one goes bankrupt the other would still owe the whole amount. "

Lets see how we go. Thanks so much for all of your comments.

cwisd

silvercar

The risk is that in court he claims that the debt was hers, if she is prepared to say in court that she agreed to reimburse you not him, it may be classified as her debt alone.

alastairq

Basically no secured or unsecured debts survive

caution, pedant alert!

For the benefit of lurkers...........secured debts are not included within a [personal] BR......[since they will be secured against an asset, usually a property.]

This can be confusing, since other threads advise how..for example, following a re-possession, shortfall gets included within a BR.

The method is as follows....the property asset is re-possessed..therefore any shortfall becomes unsecured...therefore falls into the BR.

Thus, a secured debt has to become unsecured before it can be included within a BR.