Help Needed

[dazzer]

Re: Help Needed

Thank You SX,
You reflected my thoughts exactly and that is why I went along to 2 recorded interviews, hoping that the interviewers would have some sense and realise what I was saying. However, it seemed that I was giving them too much credit and since I accepted that I was having to become bankrupt, I gave in and did not challenge any further. The OR sent the DWP and the local council the information that their claims were being included in the bankruptcy, which did not seem to be disputed by either party. Then a few months later, I got a letter from the council stating that both they and the DWP were issuing ADPEN and this was seperate from the original claims. I approached my OR, who was not sure if this was true or not. But my conversation with the man from the council, led me to believe that conceding to this payment would mean that a line would be drawn under the whole affair. I was just so fed up that I went down to the council office and signed both the DWP form and the council form. I was not cautioned. Following my signing, the council has agreed to accept a small payment per month to pay off the ADPEN charge. I did not hear back from the DWP until their debt recovery team has come in, in this heavy handed way.
Dazzer

[SXGuy]

Re: Help Needed

When i went BR some years ago, the OR told me, that any debts, which were not included in the BR can be included after.

I had asked, what if i remember i owed joe bloggs some money after you have sorted out whats owed. He said, it didnt matter, inform me of the debt and i will add it on.

So if he was correct, then they issued ADPEN after BR but it was relating to a debt prior to BR. In my view, it still isnt owed, it should also be written off.

Councils love to play the i know best game, all they are, are civil servants, and have no clue what they are talking about.

I had a non domestic lease prior to my BR, and because the lease was not ripped up until after the date of BR, the council wanted to charge me non domestic rates between my BR date and the date the lease ended.

I made the mistake of not defending the court claim in the correct manor and they won judgement by default.

If i had known what i know now, i would have denfended it on the grounds that as someone whos BR can not hold a lease (stated in the agreement) it should have ended on the date of BR thus no domestic rates after that date could be applied.

Similar to you, if they raise a charge based on a debt prior to BR then this should also be included in your BR.

Think of it this way, if you had a credit card debt of 10k, went BR, and then they charged interest after that date, do you owe that interest? no.

So if i was you, i would defend it in court. im not quite sure how the rules work in regards to this, but maybe legal advise is your best option.

[dazzer]

Re: Help Needed

Thanks for your support SX, its good to know that someone else has been through BR as well. I get frustrated that everybody I spoke to, could not understand that I did nothing wrong in the first place. I went to CAB and arrange an appointment to see a 'specialist'. I gave an overview prior to making the appointment so the correct specialist could be identified. When I attended the appointment, I was confronted with a lady who had a few notes and some links which were of no help. When I tried to explain she seemed annoyed that I had tried to claim benefits when I had £50,000. She kept going to talk to her boss and returning with information that only demonstrated that she was out of her depth. Amid all the other things I had on my plate, I just concluded that not even the so called professional were going to understand what I had done.
I agree with your conclusion re: the ADPEN and that since it relates to the debt that was covered in the BR, it too should be included but my OR was not certain. It seems that the DWP could be a law unto itself. And then there is this point about whether it was fraud. I just feel that if there was any doubt then the DWP should have said something when the BR was first proposed, otherwise, I might be harassed by their debt management department for evermore. Following on your point, if anybody on here can advise as to where I can seek legal advice that will not cost me then I would be very grateful.

[philnicandamy]

Re: Help Needed

Dazzzler you could try community legal advice service? can be free subject to benefits etc

Community Legal Advice : Directgov - Directories

other than that some places do offer a free 30 minute session with a solicitor...you could try that?

..and agree with SX guy with what he's said (I became bankrupt nearly 6yrs ago as well)

[helmsman]

Re: Help Needed

Thanks for your support SX, its good to know that someone else has been through BR as well. I get frustrated that everybody I spoke to, could not understand that I did nothing wrong in the first place. I went to CAB and arrange an appointment to see a 'specialist'. I gave an overview prior to making the appointment so the correct specialist could be identified. When I attended the appointment, I was confronted with a lady who had a few notes and some links which were of no help. When I tried to explain she seemed annoyed that I had tried to claim benefits when I had £50,000. She kept going to talk to her boss and returning with information that only demonstrated that she was out of her depth. Amid all the other things I had on my plate, I just concluded that not even the so called professional were going to understand what I had done.
I agree with your conclusion re: the ADPEN and that since it relates to the debt that was covered in the BR, it too should be included but my OR was not certain. It seems that the DWP could be a law unto itself. And then there is this point about whether it was fraud. I just feel that if there was any doubt then the DWP should have said something when the BR was first proposed, otherwise, I might be harassed by their debt management department for evermore. Following on your point, if anybody on here can advise as to where I can seek legal advice that will not cost me then I would be very grateful.

Hi,
Could try your local courts they often have a free solicitor available, would need to check find out the days that do housing or bankrupcy hearings.

[dazzer]

Re: Help Needed

I have gone back to my OR for my BR and asked why was being pursued now when the DWP had not complained at the beginning of my BR. She told me that I would have to take with the person who deals BR issues after they had been closed. So I contacted this other person. She emailed me back saying that she was not experienced enough to deal with my issue and would pass it on to some else (their staff who deal with BRs day in and day out and hopefully are trained are allowed to say they don't understand yet the general public are jumped upon from a great height if we don't understand). I have just received an email from my original OR stating the following :-

Dear Mr xxx

This office has looked at the original file and I can confirm the following information:

The DWP at the time of the bankruptcy order felt they had enough evidence to base a Fraud claim against you. Any debts included in a bankruptcy are held against the bankrupt until the bankrupt is fully discharged from bankruptcy (not upon the making of the bankruptcy order).

Chapter 40.12A of the Insolvency Act 1986 states that some provable debts are not released upon discharge. This means that Discharge from bankruptcy does not release the bankrupt from any bankruptcy debt incurred under the following circumstances:

A bankruptcy debt incurred in respect of, or forbearance in respect of which was secured by means of, any fraud or fraudulent breach of trust to which he/she was a party.

It continues:
Examples of the circumstances, which may result in this type of debt, include:
Benefit overpayments made as a result of benefit fraud on the part of the bankrupt;
It is therefore up to you to argue with DWP that the debt was not incurred through fraud and the DWP. Until such time, the DWP are able to pursue you for these debts.

The Official Receiver office is unable to help you further and you should seek your own independent legal advice from this point onwards.


I have replied to her asking why I was not informed of this at the beginning of my BR

[SXGuy]

Re: Help Needed

Ok so seems they are wiping their hands of it.

And it appears as though you need to argue the case for fraud before you can get it settled.

They are correct in saying that any monies added to BR which is found to be a debt relating to fraud can be held from BR even after discharge.

This would make sense, since you couldnt commit fraud, then apply for BR.

But, you are also right in saying this should have been made clear to you at the time.

Its all starting to get abit out of my depth now to be honest, so id personally say, try and find a free solicitor at your local court who will advise you.

You will certainly need someone who knows what they are talking about to defend on your behalf in regards to DWP.

Sooner the better really, because knowing them, once they get their claws in, they will just sweep you away with procedure and give you no room for defence.

Have you checked your local court for a solicitor who will advise you for free?

[dazzer]

Re: Help Needed

Hi
I thought that before I sought legal advice, I would best make use of any free time available by exploring all my options. I can't understand their point at the moment. If they want to fight this case in court, they will open up a can of worms as to how my accountant could allow me access to my pension and also the declaration to all my old friends who are currently contracting through a limited company that they should look upon the money in the company as their money to do whatever they see fit. What they might gain from me would be a drop in the ocean by comparison to what the government stands to lose.

[dazzer]

Re: Help Needed

OK my OR has come back with the following:-

Dear Mr XXX,

Thank you for your email.

At the time of our conversations (when the order was first made) we were
discussing whether the debt was included in the bankruptcy, which it
was.

The Insolvency Act provides that, if the overpayment arose as a result
of fraud, the debt is provable in the bankruptcy proceedings but would
survive discharge and the debt would still be enforceable.

From this point onwards you should liaise with the DWP in regards to
this matter as they claim to have enough evidence that the money was
claimed fraudulently by you.

You should also seek your own independent advice

This lady was very helpful to me throughout my bankruptcy and even sent the correspondence again to the DWP when they initially came back to me in Feb 12 saying that they had no evidence of my BR.

Something is certainly fishy here. I am thinking of going to my OR seniors but is this where she is getting the advice to send me the emails I am currently getting from her.

I would be grateful for the forum's views on the best possible steps for me to take here

[dazzer]

Re: Help Needed

The point I was trying to make with the above posting is that the new email from my OR seems to contradict my previous posting where she stated that the fraud issue was recognised at the start of the BR but now she says that the debt was INCLUDED at the start of the BR,

[dazzer]

Re: Help Needed

Hi
I contacted a senior person at the OR's dept. This was his response:-

Dear Mr XXX,


The two emails to which you refer might appear confusing, however, both are factually correct.


In essence. The DWP are able to claim in your bankruptcy for the amount you owed them at the date of the bankruptcy order. It is a debt provable in the bankruptcy and if moneys were available for distribution they could take part in that distribution.


A Bankrupt is discharged from a responsibility to pay the majority of provable debts on their discharge. In essence the only remedy the creditor has is via the bankruptcy. However, where a debt has been incurred as a result of fraud, although provable in the bankruptcy it is not discharged on the bankrupt’s discharge. The creditor can continue to purse the bankrupt for payment following their discharge. I understand that to be the case here. DWP have determined that their debt or part thereof was incurred as a result of fraud and although they have lodged a claim in the bankruptcy are within their rights to pursue you outside those proceedings for payment.


You have enquired as to why this was not explained to you earlier. I was not party to previous conversations, however, would surmise that the examiner involved was not fully aware of all the details of the DWP claim. It is not always possible to cover all possible scenarios at interview.


The matter of whether DWP has a claim they can continue to pursue is a matter between you and DWP. It is not a matter the Official Receiver can become involved.


Yours sincerely

I believed that when I went into BR, I feel that I am justified in thinking that the OR should warn me of any debts that could survive the BR. As I have previously stated, civil servants expect tolerance when they, as professionals, supposedly experienced and trained in their jobs make mistakes. However, if you make a mistake, in spite of the fact that you don't understand the complicated system, they don't afford you any tolerance. I would be extremely grateful, for any feedback.
Thank You
PS Apologies for delays, but I work as a carer, and have to work 60+ hours a week

[SXGuy]

Re: Help Needed

You right they should have made you aware that debts can be stayed from discharge of BR should they be proven to have been obtained by fraud, but whether it will get you any where in terms of the DWP i doubt very much.

The best course of action would be to fight the DWP and if found in your favour, the debt would be discharged.

Have you managed to speak to a solicitor about this at all?

[dazzer]

Re: Help Needed

Thanks SXGuy,
I tried to contact legal aid and text 8081, got a reply that they would contact in around 24 hours but nothing came back from them at all. Tried again and still no response. Phoning them was also a waste of time. When I have approached a couple of local solicitors, it seems that the technical terms to do with the SIP and my pension was beyond their comprehension. My problem is that I have been deemed guilty because the professionals concerned don't understand how my accountant had exploited the loophole in the pension system.

[mgfboy]

Re: Help Needed

Thanks SXGuy,
I tried to contact legal aid and text 8081, got a reply that they would contact in around 24 hours but nothing came back from them at all. Tried again and still no response. Phoning them was also a waste of time. When I have approached a couple of local solicitors, it seems that the technical terms to do with the SIP and my pension was beyond their comprehension. My problem is that I have been deemed guilty because the professionals concerned don't understand how my accountant had exploited the loophole in the pension system.

What loop hole on pension are they talking about, normally the only time they get shirty is when companies pay money in to a pension before they go bankrupt, so it's hidden from the creditors.

What have they said you have done???

[dazzer]

Re: Help Needed

Hi mgfboy,
What happened is that my accountant moved my pension to a SIP that allowed him to take part of it (not the lump sum entitlement) and put it into a limited company that I was a director of. When I was unemployed and signed on. I claimed benefit, I deemed that this money was part of my pension and therefore did not need to be declared as savings. The DWP are claiming that since I was the sole director of the company, I should have considered that this money was available to me and therefore should have been declared.