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heres one for the teckies!
i was made bankrupt in 1994 with no knowledge. the court ordered a suspension of discharge in 95 due to non complience. i bought a property in 1999. in 2001 i was informed of the bankruptcy and attended with the or and complied. the or sent a section 307 notice claiming my equity in the family home yet at the time he was not trustee as he had requested release as trustee in 1995 and this was granted by the court. suspension lifted so discharge may 2003. in 2002 the or applied to sos for appointment of ip and this was granted. in the ip did not serve s307 notice. after 5 years of negotiating and very long silences on the ip's part. in 2006 he instructed a solicitor to conclude the matter. after unsuccessful negotiations and an 8 month silence possesion proceedings were drawn up.
after inspecting the court file today i discovered volumes of documents were missing so i am not 100% on all of the following issues until i have inspected other files
after the or was released as trustee does this invalidate the or's sec307 notice?
it seems that the or did not request a meeting or resolution of the creditors before applying to the sos to appoint a trustee, does this mean the appointment of the trustee is invalid?
the ip as trustee requested a meeting of creditors to determine the level of his renumeration and requested that he be allowed to charge fees on a time spent basis without giving any alternatives or guidance as to the options available, the ip did not inform me of the request for a meeting. does this mean that he cant charge on this basis and accordingly should be paid to the guidance in schedule 6 of the fees rules as amended?(debts approx £5.5k interest £3k ips fees £30,000+ at the moment.
i have paid £35,000 into the solicitors account from a remortgage to stop the ip sellling my house.

Hi RichardO and welcome to the forum

Your post raises some interesting points - I almost felt that I was taking my insolvency exams all over again!

It seems odd that you were not aware of your previous bankruptcy, so I assume that the order was made under substituted service, and that you did not become aware of this fact until 2001.

It also seems strange that when you bought the property, your solicitor did not not carry out a bankruptcy search which ought to be standard procedure. Notwithstanding these facts, the S307 notice appears good, and has obviously caused the bringing of possession proceedings against the property in favour of your Trustee.

It is unlikely that the OR would have ceased to act as Trustee in the years from 2001 to 2002, and even if this had occured, he would have remained Trustee in default, and the asset remained vested in the estate ad infinitum, as it was acquired at a time when you had not been discharged.

The OR does not require a resolution of creditors to appoint a private sector IP to act as Trustee, as there are sufficient powers to allow this under the Insolvency Act and Rules.

With regard to the Trustee's fees, a copy of the SIP9 guidance notes to creditors should have accompanied his request for fees to be drawn on a time-cost basis. This is best practice, not statutory regulation, but most lending institutions recognise that this is the more common way for insolvency practitioners to request to be remunerated.

You should have been given notice of the creditors meeting - pursuant to Rule 6.84, and if this has not occured you do have grounds for a complaint, however are you sure that the Trustee was aware of your whereabouts, as this seemed to have caused the original problem back in 1994. As you have now been discharged, it is your right to question the amount of fees charged by the Trustee, and this can be pursued via the Courts if you feel you have a good case. Alternatively you could attempt to negotiate a fixed fee with the Trustee, as it is now yourself who is effectively paying the costs.

What an expensive lesson to learn!

Regards, Melanie Giles, Insolvency Practitioner for over 20 years.

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I'm glad you answered that one Melanie!

The crucial question is does the OR ceasing to act void the s307, and the clear answer to that is no.

Melanie you are a minefield of information. If you have not already you should write a book.

I will think about that Marsha - in my spare time!!!

Regards, Melanie Giles, Insolvency Practitioner for over 20 years.

To have me propose an IVA for you, please visit:
http://www.melaniegiles.com/ivaEnquiry.asp

See customer feedback at:
http://www.iva.com/iva_companies/IVA_Advice_Bureau.asp

Thanks for your prompt reply
The bankruptcy was by personal service of a petition presented for failure to comply with a personally served stat demand. I am told this very often happens when somebody receives service by purporting to be me and in any case the judge has said it is too late to apply to set aside.

The solicitor conveyancer submitted correct searches using 3 names and there were only two names on the register. I read the tech bulletin on the LR site and it states the surname would be searched alone but does not clarify whether these results would show up on the cert. incidentally the cert received by him had a spelling mistake on my middle name and conducted a second search on me FOC so two searches were completed.
The court file shows an application by the OR to be released as trustee in July 95 and a certificate certifying the release of the OR as trustee.
This was not release of OR but just as Trustee. No other documents refer to the appointment of a trustee until the SOS application in February 2002. The rules seem to confirm what you say in respect to the OR becoming trustee by default but this is in respect of a trustee who is not an OR is released as trustee. In absence of a trustee then the clerk or OR had no right to claim the property as only a trustee can claim after acquired property invalidating the only notice in turn making me £40,000 richer.(you can see why im researching this one more.

There is also a letter in August 1994from the OR stating to the court that he was not going to call a first meeting.
In the rules it states that the first meeting must be held within the first four months.
In 2001 a clerk issued a s307 notice on me claiming the beneficial interest, and signed by him but with the OR’s name and official receiver and trustee written underneath. The OR applied to the SOS to appoint a trustee and this was then granted in March 2002.
The trustee then summoned the first meeting to accept his proposal to charge on a time spent basis.
The trustee claimed minutes were filed with the court and has a court stamped acknowledgement letter on file. The only problem is that it was the wrong court and so were not received by the court
Does this invalidate the meeting as to the resolution given?
Was the meeting valid as it was outside the 4 month time limit?
If so then the trustees fees under the rules must be based on those in section 6 fees tables being more than £20,000 less than they are now.
Can the missing documents be placed on the court file at this stage or if the rules state that the documents must be filed with the court then as they are not does this make them invalid.
I have lived in the property since purchase in 1999 and all relevant parties since the discovery have known this throughout.
You mention that I could complain regarding the service of the correct notices, if successfully would it lead to invalidating the creditors meeting and the IP’s resolution?
This would mean that his fees would have to be calculated using rule 6.138A and the schedule 6 scale

Whilst it appears that some minor issues may have not been done correctly - filing of documents in wrong Court, failure to give you notice of the meeting etc - however I feel that the Truste has acted appropriately and that your complaint would not stand.

At this stage you really ought to take specific legal advice from a lawyer with knowledge of insolvency law, who can examine the documents for your properly.

Regards, Melanie Giles, Insolvency Practitioner for over 20 years.

To have me propose an IVA for you, please visit:
http://www.melaniegiles.com/ivaEnquiry.asp

See customer feedback at:
http://www.iva.com/iva_companies/IVA_Advice_Bureau.asp

Hi Richard O

Have to admit that this has gone over my head!

Personally, I think you should take Melanie's advice and find a solicitor who specialises in this.

If I was in your position I would try and find an amicale way to sort this out as it looks as though some of this is not your fault.

What has surprised me is the role of the OR in this and perhaps a complaint could be made in order to determine what has gone wrong and at least you would get a sympathetic view point as it is clear from what I have read a lot of things have gone wrong!