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MISSED BANKRUPTCY HEARING - ADVICE NEEDED

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MISSED BANKRUPTCY HEARING - ADVICE NEEDED

Post by ligencar on Mon Jul 31, 2017 12:00 pm

Hi Guys,

Im a new member needing some help....

My son left school in May 2014, in September 2016 we were served notice at our door from a debt recovery agency claiming the school had engaged their services for un paid school fees. We had had no correspondence from the school about this and believed we left on good terms. Further investigation showed a new bursar had been appointed and she was trawling through old accounts and trying to get some cash back into the school. When my son left, I was unable to pay a portion of the remaining fees. After speaking with the then bursar he verbally agreed to write off the remaining debt. Unfortunately I have no written proof of this.

When we asked the school for some correspondence explaining what they were trying to charge us for, we received a letter referencing a child with a different name, difference school year, and two difference fee amounts!

Fast forward to now, after months of sending template letters from this forum to the agency and solicitors, they have ignored these and filed for bankruptcy in my wife's name (they stopped going for me as I have no assets). My wife never signed any agreements with the school and is very distressed by this situation. I have sent them the three letters and notice of copy write etc. I have always offered to pay should they provide me with a bill/proof of debt.

Sadly we missed the date for the bankruptcy hearing. My wife was too anxious to attend and I only discovered now that I would have been able to attend in her place. Can anyone advise me going forward of how I can proceed? Should be have the bankruptcy set aside? Or discharged?

A lawyer we spoke to said our cheapest option is probably to try and settle outside of court.

Thanks in advance for any advice.


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Re: MISSED BANKRUPTCY HEARING - ADVICE NEEDED

Post by Candor on Mon Jul 31, 2017 2:02 pm

Hi this is not me giving you advice, but just making some observations you may wish to cogitate over.

A statutory Demand is what initiates a BANKRUPTCY petition, did you receive notice of this ?

Has the DCA the right to sue and is the cause of action clearly enjoined on your PERSON as per the school fees agreement ?

The right to sue is also known as a "Chose in Action" and is the only thing the justice will need to know the claimant has and its railway time, I know this from first hand experience.

But you can be aware if they have a chose in action by establishing if they have a legal assignment or an equitable assignment or are they the beneficial owner of the equitable interest, this is important to establish and to know what differences each one has, because if you don't raise it the justice will let them steam ahead and they may not even have the chose in action, they are all buddies in the high court and the "at law" side of the chancery division. so things that they would never accept from you or I, become acceptable among themselves, they rely on their knowledge of particular CPR rules that we are unlikely to know to usually get away with it or they will just stick it through anyway if they think they can get away with it.

Everything centres on Title and rights/interests, if they cannot prove the chose in action was correctly assigned or granted .... they have no right to sue simple.

The three letters templates do not challenge this, and this is the problem with using templates, especially without the core knowledge of how assignments and right of action are transferred.

How do you know what they have - is it a bailment, an equitable charge, a beneficial interest (that they own/have title of), or something else ?  

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Re: MISSED BANKRUPTCY HEARING - ADVICE NEEDED

Post by Jinxer on Mon Jul 31, 2017 4:22 pm

Well for them to apply to make your wife bankrupt they have to prove your wife owes them over £5k. I would of thought some sort of signed agreement would be the minimum a Court would accept as proof.
Did you get a copy of the Bankruptcy petition, what was in that for proof.

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Re: MISSED BANKRUPTCY HEARING - ADVICE NEEDED

Post by ligencar on Mon Jul 31, 2017 9:12 pm

Thank you for the replies all - Greatly appreciated.

For some extra details:  

They didn't actually serve the bankruptcy petition correctly, as in they didn't personally hand it to my wife & she had no knowledge of the hearing even happening. So they ruled in favour of the creditor in her absense. We have been informed to fill in a IAA form which covers the following points to set aside the case:

"FOR AND ORDER THAT:

[(a)STATE CLEARLY WHAT ORDER YOU ARE SEEKING; (b) BRIEFLY SET OUT WHY YOU ARE SEEKING THE ORDER; (c) THE SECTION(S) OF THE INSOLVENCY ACT OR NUMBER(S) OF THE INSOLVENCY RULES UNDER WHICH YOU ARE APPLYING; (d) WHAT EVIDENCE YOU RELY ON IN SUPPORT OF THIS APPLICATION – BY WAY OF WITNESS STATEMENT]"

How should we approach this?

As proof that she owes the money, they're sending a contract signed by both parents in 2008 that states that in the eventuality that fee's shouldn't be paid they are able to seek payment from either parent. They had communication with me and only from me, and the agreed new terms regarding Fee's was with me and the Bursar in 2014, therefore shouldn't involve her? So my wife being served with bankruptcy came as a shock.

As the original agreement to wipe all debt by the bursar was a verbal agreement and he's no longer there, would this also stand up in court if I'm still a potential debtor on their system as he only managed to clear half of the original amount? Another point is that they're a registered charity and offer money for such shortfalls so it's not unusual for them to right off such things.

Any help with filling out the IAA will be greatly appreciated. I'm hoping that the background I have just given shed's a bit more light in understanding the situation. I'm not too sure if its 'A bailment, an equitable charge, a beneficial interest (that they own/have title of), or something else ?" All that I know is that before the old bursar left I might not have been removed as a debtor?

As a note the new bursar is unwilling to cooperate or lend a helping hand in resolving the issue.

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Re: MISSED BANKRUPTCY HEARING - ADVICE NEEDED

Post by Ausk on Wed Aug 02, 2017 9:21 am

@ligencar wrote:Thank you for the replies all - Greatly appreciated.

For some extra details:  

They didn't actually serve the bankruptcy petition correctly, as in they didn't personally hand it to my wife & she had no knowledge of the hearing even happening. So they ruled in favour of the creditor in her absense. We have been informed to fill in a IAA form which covers the following points to set aside the case:

"FOR AND ORDER THAT:

[(a)STATE CLEARLY WHAT ORDER YOU ARE SEEKING; (b) BRIEFLY SET OUT WHY YOU ARE SEEKING THE ORDER; (c) THE SECTION(S) OF THE INSOLVENCY ACT OR NUMBER(S) OF THE INSOLVENCY RULES UNDER WHICH YOU ARE APPLYING; (d) WHAT EVIDENCE YOU RELY ON IN SUPPORT OF THIS APPLICATION – BY WAY OF WITNESS STATEMENT]"

How should we approach this?

As proof that she owes the money, they're sending a contract signed by both parents in 2008 that states that in the eventuality that fee's shouldn't be paid they are able to seek payment from either parent. They had communication with me and only from me, and the agreed new terms regarding Fee's was with me and the Bursar in 2014, therefore shouldn't involve her? So my wife being served with bankruptcy came as a shock.

As the original agreement to wipe all debt by the bursar was a verbal agreement and he's no longer there, would this also stand up in court if I'm still a potential debtor on their system as he only managed to clear half of the original amount? Another point is that they're a registered charity and offer money for such shortfalls so it's not unusual for them to right off such things.

Any help with filling out the IAA will be greatly appreciated. I'm hoping that the background I have just given shed's a bit more light in understanding the situation. I'm not too sure if its 'A bailment, an equitable charge, a beneficial interest (that they own/have title of), or something else ?" All that I know is that before the old bursar left I might not have been removed as a debtor?

As a note the new bursar is unwilling to cooperate or lend a helping hand in resolving the issue.

As proof that she owes the money, they're sending a contract signed by both parents in 2008 that states that in the eventuality that fee's shouldn't are not paid they are able to seek payment from either parent. This is what the words "joint and several mean."

Have you received any documentation or other communication from them, requesting the money before they initiated legal proceedings? Surely there must be laws in your jurisdiction that set out a legal process to be followed when taking legal action? One cannot (not yet anyway) go straight from owing a debt to bankruptcy proceedings. There must be several steps in between.

You need to find these on the govt website and read them. As a result of this you may like to consider applying for the bankruptcy proceedings to be stayed pending your request that the legal process has not been complied with (as you understand the facts of the situation.)

You must do this ASAP and from what Tiggy used to say I suggest that you need to first of all request they supply you with copies of the documents they will be relying on in court (this is called discovery and there should be a court document for this too,) then prepare your defence and get it into the court urgently.

Part of your defence is that because the school has not requested and then sought to enforce the terms and conditions of the contract to pay the fees, as per the established legal process, then failure to grant a stay, and allow bankruptcy proceeding to continue, might cause you to suffer a miscarriage of justice due to the absence of due process.


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Re: MISSED BANKRUPTCY HEARING - ADVICE NEEDED

Post by Ausk on Wed Aug 02, 2017 9:40 am

@Candor wrote:Hi this is not me giving you advice, but just making some observations you may wish to cogitate over.

A statutory Demand is what initiates a BANKRUPTCY petition, did you receive notice of this ?

Has the DCA the right to sue and is the cause of action clearly enjoined on your PERSON as per the school fees agreement ?

The right to sue is also known as a "Chose in Action" and is the only thing the justice will need to know the claimant has and its railway time, I know this from first hand experience.

But you can be aware if they have a chose in action by establishing if they have a legal assignment or an equitable assignment or are they the beneficial owner of the equitable interest, this is important to establish and to know what differences each one has, because if you don't raise it the justice will let them steam ahead and they may not even have the chose in action, they are all buddies in the high court and the "at law" side of the chancery division. so things that they would never accept from you or I, become acceptable among themselves, they rely on their knowledge of particular CPR rules that we are unlikely to know to usually get away with it or they will just stick it through anyway if they think they can get away with it.

Everything centres on Title and rights/interests, if they cannot prove the chose in action was correctly assigned or granted .... they have no right to sue simple.

The three letters templates do not challenge this, and this is the problem with using templates, especially without the core knowledge of how assignments and right of action are transferred.

How do you know what they have - is it a bailment, an equitable charge, a beneficial interest (that they own/have title of), or something else ?  

Chandor, would you be kind enough to elaborate and explain:

This:
The three letters templates do not challenge this, and this is the problem with using templates, especially without the core knowledge of how assignments and right of action are transferred.

and this:

How do you know what they have - is it a bailment, an equitable charge, a beneficial interest (that they own/have title of), or something else ?  

and what changes would suggest that we make to the 3 letters to ensure they do challenge the chose in action and how might we word it?

Thank you for sharing your knowledge. - knowledge is power and with power we get justice.

Ausk
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Re: MISSED BANKRUPTCY HEARING - ADVICE NEEDED

Post by Tiggy on Fri Aug 11, 2017 4:17 pm

You need to apply to try to get this bankruptcy either annulled or set aside ASAP. Presumably the Court hearing was to be a public examination? As your wife failed to attend Court she's now in danger of being arrested for contempt of court, also if you own a property they can order it's sale.

Sticking your head in the sand isn't an option. Consult a Solicitor.

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Re: MISSED BANKRUPTCY HEARING - ADVICE NEEDED

Post by daveiron on Mon Aug 14, 2017 12:40 pm

Hi,

This may be of use.




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