Can someone translate this into english please!

Notgotapottoweein

Hi guys i had this email today from the insolvency service concerning what is likely to happen to a property i signed over to my ex wife during our divorce in 2004.

Could someone translate it into english please!


Thank you for your e-mail of the 24 January 2008.
Please note that the Central Enquiry Line cannot provide advice, only
general information relating to insolvency. You may wish, therefore, to
take some legal advice on this matter.
Where matrimonial proceedings have been completed prior to the bankruptcy
order, consideration would be given to their effect upon the bankrupt’s
interest in the property. In particular, a property adjustment order may
have been made which may have resulted in the property being transferred in
whole or part to the bankrupt’s spouse. Such settlement or transfer may be
capable of being set aside as a transaction at an undervalue or a
preference, under the provisions of sections 339 and 340 of The Insolvency
Act 1986.
Section 39 Matrimonial Causes Act 1973 provides that any property transfer
order in matrimonial proceedings is capable of being set aside. An
application for a property adjustment order can be made under section 24 of
the Matrimonial Causes Act 1973. The official receiver would note that any
settlement made will have sought to balance the interests of the divorcing
spouses or separated couples between themselves. The family court will not
have taken into account creditors rights. When the official receiver is
trustee he/she would only seek to challenge orders where it is evident that
creditors have suffered.
Where a property is subject to a property adjustment order in matrimonial
proceedings under section 24 of the Matrimonial Causes Act 1973 or a similar
order , section 39 of the Matrimonial Causes Act 1973 states that the making
of such an order does not prevent the settlement relating to the property
from being set aside by the Court on the application of the trustee as a
transaction at an undervalue or as a preference. The official receiver would
therefore consider whether the transfer of the bankrupt’s interest in
property under a property adjustment order (or similar order) may be set
aside.
The bankrupt’s interest in property may also be adjusted by section 17 of
the Married Women’s Property Act 1882 or section 37 of the Matrimonial
Proceedings and Property Act 1970.
The following cases provide some assistance in deciding when a transfer of
the bankrupt’s interest in property as part of matrimonial proceedings may
be set aside:-
(a) if the spouse waives a claim to have the bankrupt’s share in a
jointly owned matrimonial home transferred to him/her in exchange for an
enhanced share in the proceeds of sale of the home, this may amount to
adequate consideration for a compromise (Re Abbott (a bankrupt) [1982] 3 All
ER 181);
(b) the compromise of a claim to financial provision in matrimonial
proceedings can amount to consideration when deciding if a transaction was
at an undervalue. Whether the compromise is relevant consideration depends
upon its value; if the transferor had no other assets (except the property
transferred) the compromise by the transferee of not seeking further
financial provision will have no value.
(c) if the transfer of the bankrupt’s interest in the jointly owned
matrimonial home was made prior to the matrimonial proceedings and no
agreement was made at the time that the spouse would not seek further assets
from the bankrupt, the transfer will not be deemed to be relevant
consideration. The assumption by the spouse of sole liability for a mortgage
on the property will not be sufficient to prevent the transaction being at
an undervalue if the difference between the equity of redemption and the
mortgage is sufficient (Re Kumar (a bankrupt) ex parte Lewis V Kumar and
another [1993] 2 All ER 700).
I hope this information will be helpful.


Good luck

tigerfeet2006

Fermiiiiiiiiiiiiiiiii!!!!!!

Scarlett.1974

tigerfeet2006 wrote: »

Fermiiiiiiiiiiiiiiiii!!!!!!

:rotfl: my thoughts exactly!

Did anyone else get a headache just reading that? :eek:

Notgotapottoweein

I'm sure the IS are only trying to help:rolleyes:

fermi

OMG!!! :eek:

I'll have to have a look at that later on.

They seem to have used at tactic that I often find useful:

"I don't know the answer, but if I quote enough "legal" sounding stuff maybe people won't realise." :rotfl:

With a bit of luck a random passing lawyer will decipher it before I have time to come back.

You could ask Richard, he's meant to be better at property stuff (fermi cops out ).

Notgotapottoweein

fermi wrote: »

OMG!!! :eek:

I'll have to have a look at that later on.

They seem to have used at tactic that I often find useful:

"I don't know the answer, but if I quote enough "legal" sounding stuff maybe people won't realise." :rotfl:

With a bit of luck a random passing lawyer will decipher it before I have time to come back.

You could ask Richard, he's meant to be better at property stuff (fermi cops out ).

Funnily enough he said you'd be along soon!

Richard_S

fermi wrote: »

OMG!!! :eek:

I'll have to have a look at that later on.

You could ask Richard, he's meant to be better at property stuff (fermi cops out ).

OMG!!!!:eek:

I'll have to have a look at that later on; much later.;)

Come on fermi, this isn't property;:eek: it's property and family law; :eek: your forte is pouring over case law and complicated abstract concepts.:D

I do get the gist of it but I'd need to just check the cases quoted and I've got a rush job on at work. The only other thing I've noticed is there are no time constraints; does that mean a transfer can be set aside regardless of how long ago it took place?

I'll have another look when work's not getting in the way.

Richard

Richard_S

Hi Notgot,

I've just been looking at the relevant legislation and from my layman's perspective it looks as though the transaction should be O.K. It'll take me a while to post it back on line, and I'll be interested to see what fermi thinks.

Having said that, don't rely on what we say, when it comes to making a final decision; seek legal advice.

I'll post as soon as I can.

Notgotapottoweein

Thankyou Richard.

If you say its raining i'll get my umbrella:p

fermi

Notalot has spoken to CLS direct, who seem to think that the OR will pursue it as a TAUV.

The following link refers to a transaction/transfer that was ordered by the courts rather than voluntary, but it makes interesting reading.

http://business.timesonline.co.uk/tol/business/law/article1769520.ece

Richard_S

Hi Notgot,

In summary, the transaction took place 2 to 5 years before the likely date of your Bankruptcy Petition. It qualifies as being subject to review because it's within 5 years of your petition, but can't be voided because you weren't insolvent during that 2 to 5 year period. (Well I assume you weren't;) )

In any event, it's the Court that will have the last say if the O.R insists that the Transaction is voidable.

Regards

Richard


31.4.24 Property transfers (bankruptcy only)
The fact that a settlement or transfer of property had to be made to comply with a property adjustment order under the Matrimonial Causes Act 1973 does not prevent that settlement or transfer being considered as a transaction at an undervalue. For further details see chapter 33. It is a matter for the trustee to apply to the court to restore the position to what it would have been had the bankrupt not entered into the transaction. For further details see paragraphs 31.4.28 and 31.4.29.This seems to be the relevant part of the Regulations relating to the Matrimonial Causes Act where a bankrupt is concerned. A property adjustment order under section 24 of the Matrimonial Causes Act 1973 cannot be pursued against the bankrupt after a bankruptcy order has been made. In Re Flint [1993] 2 WLR 537 it was considered that a transfer of property order made by a Divorce Court under section 24 of the Matrimonial Causes Act 1973 in respect of property held by a person against whom a bankruptcy petition had been presented was a "disposition" and was void unless ratified by the court dealing with the bankruptcy.
Notes:[s284(1)]

31.4.28 Period of review (bankruptcy only)
It is necessary to show that the transaction was at an undervalue and that it occurred during the 5 years prior to the day that the bankruptcy petition was presented.Your transfer occurred during the Period of Review, but If the transaction was entered into in the period of 2 to 5 years prior to the presentation of the petition, the individual must either have been insolvent at that time or to have become insolvent as a result of the transaction.You were neither insolvent or became insolvent as a result of the Transaction The onus of proving insolvency is on the trustee except in relation to an associate (see below).The O.R has to prove you were insolvent, and he can’t if you weren’t Any transactions entered into in the 2 years prior to the presentation of the petitionDoesn’t apply to you; your Transaction took place between 2 to 5 years. are voidable regardless of whether or not the individual was insolvent, unless the transaction was for valuable consideration and entered into in good faith.
Notes:[s339(3)]

31.4.29 Transaction with an associate
A person is an associate of an individual if that person is the individual’s husband or wife, or a relative, or the husband or wife of a relative, or the individual or the individual’s husband or wife. Where an individual has entered into an undervalue transaction with an associate, it is presumed that the individual was insolvent at the time (see paragraph 31.4.2). It is presumed that the person did not act in good faith.
Notes:[s435] [s341(2)][Insolvency (No 2) Act1994]

31.4.30 Company or individual solvent at the time of transaction
If a transaction is to be successfully challenged the solvency of the company or the individual must be considered. If the company or individual was able to pay its debts the transaction will not be voidable The Crux of it: if you were solvent the Transaction cannot be challenged.but if the administrator, liquidator or trustee considers that there was an intent to defraud creditors an application under section 423 might be considered (see part 8)

31.4.31 Power of the court
Section 241(1) and section 342(1) contain examples of the possible orders the court may make, in relation to both a transaction at an undervalue and a voidable preference. The applicant is not entitled to demand any particular form of order or right and the court may refuse to make an order. Although the sections set out in detail various orders that may be made, they do not limit the general powers of the court.
The court may make an order which affects the property of, or imposes an obligation on, a third person who was not a party to the transaction and/or preference. However, bona fide third parties, who acquired property in good faith and for value will be protected.
Any person who was the other party to a transaction at an undervalue or received a preference will not be protected if he had notice of the relevant surrounding circumstances (the transaction or preference) and of the relevant proceedings (pending or actual insolvency) since it will be presumed that he did not act in good faith.
Notes :[s241(2) and s342(2)] [Insolvency (No 2) Act 1994