Complcated Issue - Urgent Help needed

dizzydeb

Good Afternoon.
My case is complicated so I will detail it in bullet points.
- remortgage Sept 2003 to prop up husbands ailing buisness from 60K to 100K, Joint Mtg
- didnt work husband made BR Feb 2004
- Husband left jointly owned home Sept 2005 to live with other woman, property almost unhabitable due to unfinished extension - value according to historic data on land Registry website £155,000.
- through 2006, 2 things happened husband didnt support us in any way - 2 kids at home with me - leading to £8K arrears- in court for posession from mortgage co, and with loans from family I got on and almost finished house to make it habitable and paid £8K arrears off.
- Divorced Sept 2006
Now to the interesting bit...
OR came after ex husbands BI Dec 06, under Insolvencey Act they have till end of March 07 to secure interest in it. They have offered it to me. They have valued the property Jan 07 at £195K with restricted value of £180, having valued ex husbands BI at £195K - £101.5K (existing mortgage) = 93.5K/2 = £46.75K
Have till court date of 12th April to make offer. I have secured remortgage in my own name up to £130K after fees will have £27.5 to offer them.
Now....sols have advised me that the fact remortgage was done immediately prior to BR and I did not benefit at all ....all cash went into buisness...its directly relevant as there is some case law suggesting the relevancy of this...does any leagle eagles know of it..??
I disagree with their valuation and an going to argue that the valuation should be taken when husband moved out...thats when his BI ended...coz on paper my offer of £27.5K on BI of £46.75 looks like it wilkl be thrown out.

However, I have had property valued for marketable purposes by local agents and a realistic sale price is £180K, taking he fact that I have paid £8k in arrears within the last 9 months ...looking at £180 - £8 - £ £101.5 = £70.5/2 = £35.25K BI
My offer of £27.5K dont look too bad....
Advice from sols is to present all deatils before court in witness statement...prove thats the most I can offer...I have 2 kids still at school...whilst the judge cant "force" IP to accept they can suggest that in order to come to a quick resolution best to accept, coz with forcing sale there is no guarantee of achieving anything quickly.
Any advice is desperaty wanted...::

Bakeybadoo

I have no idea about any of that side of things but I wanted to say that someone more experienced will be along soon and give your post a bump up top.

shameless-about-money

DD you need professional advice on this one

dizzydeb

Thanks Bakey
Thanks SOM, I have legal representation acting for me, but at £180 per hr Im trying to get as much advice as I can from others who have some experience of negotiating a buy out of the bankrupts Beneficial Interest and was hoping there was someone with more legal knowledge than I have.
My solicitor advises me that if we get to court for hearing to grant permission for them to force the sale, whilst the court cant tell IP to accept my offer they can "advise" that as im doing the very best I can...and more besides...they would be advised to take the offer Im making. Anyones experience would be helpfull.

Richard_S

dizzydeb wrote: »

Thanks Bakey
Thanks SOM, I have legal representation acting for me, but at £180 per hr Im trying to get as much advice as I can from others who have some experience of negotiating a buy out of the bankrupts Beneficial Interest and was hoping there was someone with more legal knowledge than I have.
My solicitor advises me that if we get to court for hearing to grant permission for them to force the sale, whilst the court cant tell IP to accept my offer they can "advise" that as im doing the very best I can...and more besides...they would be advised to take the offer Im making. Anyones experience would be helpfull.

Hi Debbie,

Your case really is complicated, it's beyond my personal experience or reading and I can only offer a couple of suggestions but I fear they'll fall well short of the advice you need.

1. If the date of your ex husband's bky was Feb 2004, then the 3yr window expired in Feb of this year; I know the O.R can extend the period of their "interest" in the property but have they actually done this? If you've secured a remortgage then they obviously haven't registered a charge on the property otherwise you'd never have got the mortgage.

2. When your husband left the house was uninhabitable and with the help of your family you managed to complete the alterations to make the place habitable; I think you could probably argue that other members of your family have an equitable interest in the house.

3. Your other post re: Equity of Exoneration is another interesting aspect that you can throw at the O.R and “muddy the waters” even further.

4. If I was in your position I would talk to the O.R, arrange a meeting. I’d point out that you’ll fight tooth and nail to keep your house; you have children and whatever criticisms of our liberal minded judges we may make a judge is always reticent to make a family homeless when children are involved. Cloud the waters even further, tell the O.R that you’ll make no more mortgage payment if they pursue their current course of action. If you do have to face eviction you’ll remove everything from the house that’s not bricks and mortar and smash every window the night before you leave. Make every emotional irrational threat you can think of and then just announce that he can avoid all this by just accepting the £20k you currently have to offer; I wouldn’t offer the full amount you have available, let him up it to £22k and think he’s done a good job.

From a strictly legal perspective as I’ve said, it’s beyond me, but I do know if you fight this at a personal level and cause enough ripples you will get a result. The O.R does do deals, they do what they think is best for your ex’s estate. If they can get their hands on £20k now that’s a damm site better than having a “trashed property in 2 yrs time that would never sell for anywhere near it’s current value.

You do seem to have good legal advice but don’t forget that you can put pressure on from a different angle. You do seem determined to fight the b******s and I really do wish you all the best and wish there was more I could do.

Best regards

Rich

im1dful

Richard_S wrote: »

1. If the date of your ex husband's bky was Feb 2004, then the 3yr window expired in Feb of this year; I know the O.R can extend the period of their "interest" in the property but have they actually done this? If you've secured a remortgage then they obviously haven't registered a charge on the property otherwise you'd never have got the mortgage.

The three year rule was introduced with the Enterprise Act 2002 which came into force on 1 April 2004. The properties from any bankruptcies before that time didn't have a time limit, which is why there are still cases from the 80s and 90s being dealt with. However any property issues from pre-1 April 2004 bankruptcies have to be dealt with by 1 April 2007 (three years from when the Enterprise Act came into force).

Therefore the trustee hasn't run out of time.

dizzydeb

Thanks so much for studying Richard,

1. With regards to the date the OR has 3 yrs to deal with property...by deal the fact that they have made application to court secures their interest in the BI. And yep that have registered a charge on the property, and of course a condition of my new mortgage offer is that this interest be removed when title passes to my sole ownership...but then it would be coz Id have paid them...hope that makes sense.
2. You are correct, having spent two days studying case law on this area, it may be possible to argue the case that my mother now has a BI in the property, and that I have grounds to argue that only I benefit from the increase in the value due to these home improvements.
3 Having met with my lawyer...and as you can imagine...I have no money but am being forced into hiring lawyer at £180 per hour...he brings the area of Equity exoneration into the equation. Having spent the day reading everything I can....Im a text book case...it would make the figures look completley different...funny how lawyers acting for IP didnt volunteer this information isnt it?
4. I couldnt have put it better myself...and Im fighting with all I have..this is my childrens home..I dont need to say anything else. The only problem with not paying mtg is the problems that will bring in getting new mortgage in future. Its been a uphill struggle to get the remortgage offer that I have on the table now. But you are totally right..if they can get 20K now rather than have a trashed house on their hands to sell..im keeping optimistic that they will settle.

I am in contact with the sols acting for IP and will call them tomorrow with the news that my legal representation is bringing equity exoneration into the equation.
I have been looking at this board quite a bit this year and would like to think..after I have won this case.!! I could offer advice to anyone else in this position...so im learning as much as I can

I will let you know what happens
Regards
Debbie

Richard_S

im1dful wrote: »

The three year rule was introduced with the Enterprise Act 2002 which came into force on 1 April 2004. The properties from any bankruptcies before that time didn't have a time limit, which is why there are still cases from the 80s and 90s being dealt with. However any property issues from pre-1 April 2004 bankruptcies have to be dealt with by 1 April 2007 (three years from when the Enterprise Act came into force).

Therefore the trustee hasn't run out of time.

Hi there,

Thanks for that I should have realised. That's the beauty of throwing a question at a group of people, what one person misses another will pick up.

Regards

Richard

Richard_S

dizzydeb wrote: »

Thanks so much for studying Richard,

1. With regards to the date the OR has 3 yrs to deal with property...by deal the fact that they have made application to court secures their interest in the BI. And yep that have registered a charge on the property, and of course a condition of my new mortgage offer is that this interest be removed when title passes to my sole ownership...but then it would be coz Id have paid them...hope that makes sense.
2. You are correct, having spent two days studying case law on this area, it may be possible to argue the case that my mother now has a BI in the property, and that I have grounds to argue that only I benefit from the increase in the value due to these home improvements.
3 Having met with my lawyer...and as you can imagine...I have no money but am being forced into hiring lawyer at £180 per hour...he brings the area of Equity exoneration into the equation. Having spent the day reading everything I can....Im a text book case...it would make the figures look completley different...funny how lawyers acting for IP didnt volunteer this information isnt it?
4. I couldnt have put it better myself...and Im fighting with all I have..this is my childrens home..I dont need to say anything else. The only problem with not paying mtg is the problems that will bring in getting new mortgage in future. Its been a uphill struggle to get the remortgage offer that I have on the table now. But you are totally right..if they can get 20K now rather than have a trashed house on their hands to sell..im keeping optimistic that they will settle.

I am in contact with the sols acting for IP and will call them tomorrow with the news that my legal representation is bringing equity exoneration into the equation.
I have been looking at this board quite a bit this year and would like to think..after I have won this case.!! I could offer advice to anyone else in this position...so im learning as much as I can

I will let you know what happens
Regards
Debbie

Hi Debbie,

I've got the feeling that you'll prevail here, you're determined, your legal team (albeit outrageously expensive) seems to be well briefed and you seem a very determined person.

Your situation is a stark reminder to everyone that goes bankrupt with a property to take advantage of pruchasing the O.R's equitable interest if they can do it for a nominal sum.

Please keep us informed how you things are going and your experience certainly will be invaluable to others in the future.

Good luck and best regards,

Rich

im1dful

One thing that I will say about equity exoneration (it was dealt with in training but it isn't something I deal with) is that you have to show that you didn't benefit from the loan. By that I mean that you didn't benefit from your husband's business in any way. When you were together, were you working? Did he pay all/most of the mortgage and household expenses?

If you weren't working and he was paying the household expenses and mortgage you may have difficulty saying that you didn't benefit from the business. Of course if the business didn't provide any money to the household and you were having to pay everything, this should be easier.

Mike_St_Helens

Jees... Its a minefield !!

Ive recently been offered my BI. Snap. Hands. off... Are the few words that sprig to mind !