Trust Deed (Scottish IVA)

[bill-k]

Took out a Trust Deed last year, and have 2 years left on it. Have since discovered that any decent lump sums have to be handed over to my creditors, and they don't go towards getting an earlier discharge, either. Great !!

 

My creditors are mostly banks and credit card companies, and since taking the Trust Deed out, I have discovered (thanks to CAG/BAG) that these organisations have all unlawfully taken money from me over the years in penalty charges. So much so, that I wouldn't have had to take out the Trust Deed if I had been able to get that money back from them last year.

 

The irony of it all now, it appears, is that if I DO claim any of MY money back from them now, then it has to be paid straight back to them toward a debt, the total of which includes the very same unlawfully deducted charges !!!

 

OK., I can wait until I'm discharged before claiming back my bank penalties, but I run the risk of some legislation being passed meanwhile to prevent this.

 

If I can secure a large enough repayment of these charges, can I "pay off" my Trust Deed early with that ? If so, then if I can offer to immediately pay all of the remaining payments due on the Trust Deed, is that likely to be sufficient to get me discharged ?

 

Can anybody help with this - or even just sympathise !!! ?

 

By the way, my own Trust Deed administrator is not very forthcoming with the info - hence my enquiry here !!

[LondonPam]

Hi Bill-k. I can't help with your specific question but I can point you to some help if no-one manages to get back to you here. I use another site that has quite a few specialists posting on it, Debt Help UK : Free debt advice and solutions, with debt consolidation | UK debt consolidation service with free help and advice . There are a few people there that are insolvency practitioners and post on the forum, they may be able to answer your question.

Good luck.

[bill-k]

OK Pam, thanks for that. I took a peek at that one earlier, but didn't post.

 

I'll introduce myself, now you've mentioned them to me yourself.

 

Bill.

[Suzy H]

Hi Bill-K

I can both empathise and sympathise with you. I also went down the sequestration route back in 2003 and this was due to be paid up next month. I had missed a good few payments to the company but they never harassed me or sent nasty threatening letters and I paid what I could and when etc.

I finally got some cash together about the middle of this year and called them asking how much it would be to cover the outstanding balance for missed payments and (if it was possible) how much it would be to pay for the rest of the year as well. She quickly provided me with the figure and I cleared off the full balance.

On 27th July 2006 I received my 'Completion of Trust Deed' - the letter confirmed that the Trust Deed arrangement had come to an end and I obtained my discharge on 26 July 2006.

I would definitely pose the question to your Trustee as it certainly made the world of difference to me - good luck

[bill-k]

Bless you, Suzy, and thank you for that.

 

I, too, have missed some payments and because of that, I have felt that my admins are not too forthcoming with straight answers. I mentioned to them that I was considering reclaiming bank charges, and hoping to pay off our Trust Deed early, and asked what sort of figures & procedures would be involved.

 

The reply I got was very negative, and was basically "If you think reclaimed bank charges are gonna pay off your arrears plus your balance, then you are on the wrong planet, matey ! Any lump sums you get are to be paid to us for distribution among the creditors (fed to the sharks ), and do NOT come off your remaining balance due under the Trust Deed."

 

So I turned, tail between legs, and sauntered off back down skid alley (cue violins ).

 

I had a current account (closed now, obviously !) which went back to the 1980's, and a good case for reclaiming charges plus contractual interest which would easily pay off the TD., but now it seems possible that they will simply say "Oh, thanks for the lump sum - duly distributed - now get back to the grindstone."

 

I need somebody to tell me that ain't gonna happen. I've got less than 6K due to pay to the TD (incl. arrears).

 

I'll take your advice, Suzy, and ask them directly for a straight answer on this. After all, reclaimed bank charges are NOT a windfall - they are my money - tax paid - taken from me unlawfully.

 

Thanks again, my friend.

 

Bill.

[Suzy H]

Oh dear Bill-k sorry you are having a hard time with your trust deed Why not phone another company and say you are thinking about going down this route ... you're owed X amount of money to creditors blah blah and what would happen if (hypothetically speaking of course) you, after a year or so, wanted to clear off the Trust Deed - could you do this blah blah.

 

Unfortunately I do not know enough about the system or process to comment on whether or not the lump sum should be distributed to your creditors all I know is that I was lucky enough to be able to clear off mine with a lump sum.

 

I did however have a look at the last letter I received from my Trustee and it says ...

 

'COMPLETION OF TRUST DEED

 

I write to confirm that the final meeting of your creditors was held in my office on 26 July 2006 however none of your creditors appeared. The minute prepared for the meeting recorded that all final proposals submitted to your creditors have been accepted and a payment of 4p in the £ has been issued to the creditors shown on the attached list.

 

This now brings the Trust Deed arrangement to an end and you obtained your discharge on 26 July 2006.

 

I have submitted my final report to the Office of the Accountant in Bankruptcy. The Register of Insolvencies will be updated shortly to record that your case has been concluded and that I no longer act as your Trustee.

 

I am happy for you to show a copy of this letter to any third party who may be interested.

 

Yours sincerely'

 

To me this means that the 4p in the £ was already agreed at the signing of the original deed and they were therefore happy at that figure. I cannot see my trustee paying 4p every month to the creditors so I guess the banks etc were either 'bought off' at the start of proceedings or latterly on completion of the deed.

 

Fingers crossed you get a positive answer soon

 

Perhaps I should also add that inorder to complete my deed and clear off my missed payments - my settlement figure was around the £4000 mark - so it's not as if it was just a few hundred.

 

Hope that helps

[Suzy H]

Just had a thought Bill-K ...

 

Are you looking to claim back unlawful charges from accounts now held under the Trust Deed? If so I don't think you can claim anything back from those accounts.

 

These debts will now be written off and, if they are anything like the size mine were, they will be to a rather large tune (eg one of my debts was for £18,820.27 and the final dividend payable to BoS was £668.41 so they would of had to of levied just over £18k for me to get anything).

 

However ... if the levied fees you are claiming back are nothing to do with Trust Deed accounts do you 'really' need to disclose anything? As you put it it's not a change in circumstances or a windfall - it's your tax paid money that was unlawfully taken from you.

 

Does your trustee ever ask for proof of income or bank statements or anything like that (mine didn't)? If not ... how would they know you had successfully reclaimed your charges.

 

Hope you caught the jist of that - I kinda waffled on a bitty there

[bill-k]

Thanks for all your time & trouble, Suzy H. Your suggestion to call a coupla companies and "enquire" is worth a go, and your own early discharge gives me hope. Thanks, too, for the final discharge letter details. From what I understand, the "4P in the £" is the initial figure the creditors agreed to, and the final agreement to this I think means that they will accept 4% of the total debts due to them in one final single payment ("in full and final settlement" of your debts with them).

 

Yes, Suzy, I AM looking to claim back unlawful charges from accounts which were closed when the TD was taken out. My reasoning is this:

 

1. They took this money from me UNLAWFULLY - years ago, some of it - and they have kept it all this time.

 

2. In doing so, they played a big part in forcing me to take out the TD.

 

3. The TD was taken out LAWFULLY, and with their agreement, whereas the penalty charges were NOT.

 

4. I believe that I am entitled to legally claim money UNLAWFULLY taken from me, regardless of who took it.

 

5. I believe the banks are entitled to legally claim money LAWFULLY owed to them, which is their TD dividend.

 

6. I do NOT believe the banks have a right to keep the penalty charges they UNLAWFULLY took from me.

 

7. So there !!

 

As regards disclosure - yes, you're right I think. Least said - soonest mended !!

 

Thanks for that, Suzy. I've got a few things to chew on now....

[Suzy H]

A very good morning to you Bill-k

 

 

 

Brilliant ... can't wait to see the development of your thread - I'm really tempted to scout around for some info myself as, like you, my case would fit nicely into your eloquently put points 1 - 6 and as for 7 ... indeed 'so there'

 

I would be lying if I said I had never thought about claiming those charges back - I just thought it was not an option! I guess because I owed just over £50k to various banks etc and and their final dividend was just under £2k .

 

 

The trust deed was something I came across through a friend who had gone down that route and am eternally grateful for that because I do not think I would be typing this reply to you today otherwise .

 

I guess looking at it another way ... prisoners who have committed a crime ... if, unfairly treated whilst incarcerated, can sue for damages. This does not negate from the fact they committed the crime - they are just suing for being mistreated.

 

Guess what i'm trying to say is ... yes the debt was mine and I accept that but it escalated because of their charges etc. I remember once going into Lloyds TSB to ask for a £100 overdraft and coming out with a £10,000 loan - silly when I think of it now but it happened!

 

Good luck and can't wait to read your updates

[bill-k]

Thanks for the smiley "Good Morning" Suzy !! I "don't do mornings" - so mine would have been a bit insincere !! Good evening, nevertheless !!

 

Looking at your total TD figures, I think mine are about the same. Yes, there are good arguments for & against imprisoned criminals' rights. But in the case of TD's & bank charges - who is the criminal ? The banks have thrived on making us all feel small and stupid, and I have no conscience whatsoever about my TD, nor claiming penalty charges back. So I feel about as guilty as they do - and that's why I have a "Reason no. 7" !!!

 

I have some details which I would like to give you, Suzy, in return for your help. However, in the spirit of "careless talk" - I would rather PM you with them, if that is OK.

 

However, out of respect for you, I won't do this unless you give me an OK., here.

 

Cheers,

 

Bill.

[bill-k]

Suzy, thanks for the PM's lately. I'll go public with this bit !!

I'd be glad to help where I can, with whatever I've learned since I stumbled onto the forum a coupla months back. Info you may already know, but may have only appeared since you last checked BAG:-

1. You DON'T need to send DPA SAR's if you have sufficient paperwork (statements, etc.) to support your figures, you only need to if you've lost or shredded (etc) them.

2. You can claim back the £10 SAR fee in your claim, though !

3. It has NOT yet been established (as far as I know) that the 6-year Statute of Limitations applies to claims for unlawfully deducted penalty charges, so claims going back to the Domesday Book are in theory worth a go !!

4. The 6-year limit doesn't apply to DPA SAR's either. BUT, if they don't send you everything, get confirmation that there is no more, etc. That way, they can't dispute estimated amounts so easily.

5. Contractual interest - the big Kahuna !!! :grin: - This can make a HUGE difference, especially when you do it right and use one of the spreadsheets to calculate it properly. It is interest at a higher rate than Statutory, and COMPOUNDED on a daily basis, just like the banks do. If you've got stuff going back a few years, you won't believe the figures, at first !!

 

You'll probably know there are templates & spreadsheets in the library, plus some others on-thread. Check out these threads - and take your time:-

 

http://www.consumeractiongroup.co.uk/forum/general/18313-why-no-one-claiming.html

 

http://www.consumeractiongroup.co.uk/forum/general/7252-new-way-looking-interest.html

 

http://www.consumeractiongroup.co.uk/forum/nationwide/28574-authorised-interest-unauthorised-interest.html

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/22690-contractual-interest.html

 

http://www.consumeractiongroup.co.uk/forum/nationwide/39978-claiming-closed-account.html

 

http://www.consumeractiongroup.co.uk/forum/general/37042-over-6-year-time.html

 

http://www.consumeractiongroup.co.uk/forum/general/25043-proving-banks-knew-charges.html

 

There - that'll keep you out of trouble for a day or two.

 

You won't thank me for the headache it'll probably give you, but you might just enjoy the end result when it finally comes !! :grin:

 

Have fun,

 

Bill. ;-)

[Guest bong]

Bill, thanks for the link.

 

I believe you only have two options.

 

1. claim now.

2. claim in 2 years time, after the TD.

 

1. - if you did this, I don't think you would legally be able to stop the money from going into the creditors' pot, because I think you would have to declare the change in your financial circumstances, AND, as you have pointed out, there is also some question over whether you would also have to continue making the agreed payments.

 

My only other thoughts on this are that you negotiate a deal with your IP to keep 50% otherwise you don't make the claim. You appear to be in quite a strong bargaining position here because you can't be forced to make the claim and he can't do it for you, but are you happy with only keeping a percentage?

 

HOWEVER, if the creditors got a whiff of this, could they apply to court to have the TD overturned and a more formal bankruptcy started so that a trustee could make the claim on your behalf?

 

Another issue that might arise is that the bank says "we will refund the charges but we will only use them to set-off against your debt to us". It is my opinion that not all cases should be refunded by cheque if it can be seen that the charges part of the debt has never been paid by you anyway, and still makes up part of the larger debt still in existence. I think they are paying by cheque because they don't want to go to court. If however you believe that you have paid the charges by making regular payments off the debt, when the account was still in operation, that might not be the case here. I'm not saying they would go to court in your case, but it could feasibly become a sticking point at some stage which your IP might have to preside over in determining what their claim against the TD is. These are just some of the things I have been pondering over and maybe you know better than I do about this.

 

Yet another problem might be that if the IP has to obtain a vote of your creditors over whether he should take action against you to get his hands on money you are reclaiming, is there a conflict of interests here with the bank being a major creditor and would this mean he has to go to court to get directions? This could work against you keeping the money.

 

2 - this sounds much the better option, even though you would have to wait 2 years. Then again you'll get another 2 years of compound contractual interest!!

 

I don't think you need to worry too much about the banks discovering any way out of the mess they are in - these are penalties and the case law is there to back us up. Also, with S.32 LA you've got six years from the OFT's report to take action. You didn't find out about all this until 2008 did you Bill? You get to keep the lot because you've paid the TD which all your creditors agreed to.

 

 

This is all just my opinion you understand and I hope it helps you in some way. I understand your thinking that this isn't a windfall, but am I correct in thinking that if your financial situation changes you have to inform the IP? Wouldn't want to see you get that far and then lose it all. The way your creditors will see it is that had this money not been taken from your account in the first place, you would have probably been able to afford to clear your debts, or some of them.

[Guest bong]

Ignore my comment about not finding out about this until 2008, if you've got six years - you've got six years. You can spend two years researching and hand-writing your claim!!

[Guest bong]

I'll put the kettle on while I'm waiting:p

[bill-k]

Bong, thank you so much for all that. You have clearly spent a great deal of time thinking about that and then punching it all in.

 

I see your point about the return of penalties still being a change in financial circumstances, even if it was actually earned years ago. Option 1 is likely to rock the boat enough to sink it, isn't it ?

 

It certainly does seem that option 2 is safest. Put the kettle on, you're right. That's 2 years to get every last bit of data from them, and every last bit of case history right up to 2008 !!

 

I'll have to finally start my own thread - "Never Ending Story" - or maybe just "Rocky - the sequels."

 

Still, looking on the bright side, you guys are gonna have me knocking about on the forum for at least the next 2 years, with nothing to do but keep popping my head round the door saying "can you come out to play ?"

 

I'll be getting red blobs and standard "sod-off Bill" posts !!!

 

Seriously, Bong, thank you again for that. Your time & effort on my behalf is so appreciated. I owe you big time. And if I were at that drinkies session with you and Dory, I'd insist on getting you a large one !

 

Thanks, matey.

[Guest bong]

You're welcome Bill. And also very funny!

 

If you hear of anything that contradicts what I've said or get any other info I'll be interested in following this with you.

[bill-k]

You're welcome Bill. And also very funny!

 

If you hear of anything that contradicts what I've said or get any other info I'll be interested in following this with you.

 

Will do - much obliged, Bong.

[bill-k]

Firstly, thanks to you all Pam, Suzy & Bong for your input here so far.

OK. Now - Rocky XXXIV - the sequel !!!

 

The danger in giving people time to think is that they sometimes come up with something !! Well, as I've currently got 2 years without remission, there's no point in being of good behaviour, is there ? !!

 

"I have a cunning plan...."

 

I'm considering a change of tack, having discovered a number of threads relating to the Consumer Credit Act requirement to produce original executable agreements. I found these threads:-

Loan Company Cannot Supply The Original Agreement

my mums catalogue bill isnt getting any lower

moorcroft

 

Well, my creditors are all either credit cards or mail order catalogues, apart from a couple of current accounts with small O/D's. So, I shall now send off my £1 to each of these for my copy of the agreements, and I will hope that I can elicit admissions from them that they do not have an executable original agreement.

 

If that is the case, or at least, the case for most of them, then it seems that I have signed into a Trust Deed unneccesarily, as the (majority hopefully) of my creditors do not actually have any claim to their dividends. I will assume that I shall not be able to get a 100% result, but if I can get the bulk of them disqualified, then I have a better chance of settling the TD early, at least.

 

So, I'll send off a load of CCA requests right now, and during the time it takes to get the results (up to 42 days I believe), I'll hopefully have a better idea of whether this will work for me.

 

Meanwhile, any ideas anybody ? Words of encouragement, spanners in the works, or downright accusations of stupidity. Bung 'em all in the mix - please do - then I'll have a better idea of whether this "plan" is worth no more than a turnip !!

[Guest bong]

I'm so excited for you Bill..I hope it works I really do. I can usually come up with some spanners but not this time. Go Go Go!!!

[Gingerheid]

Hi! Mr Potential Spanner here

 

You will need to read the PTD agreement carefully. Your creditors are possibly (probably) entitled to the best dividend you are able to provide them.

 

If you manage to knock out the entitlement to a dividend of one, you'll probably just lead to the others getting a higher return, unless of course what you knocked out was of sufficient value to lead to the others otherwise getting a return of more than 100p in the £.

 

It gets worse. I don't konw about Scotland, but to get as far as you have in England you would have had to sworn a document stating that you did owe these people money, which makes it seem to me like too late to go back on that.

[Guest bong]

mr spanner:p - what about if you thought at the time of signing that you owed them money (just like people on here making payments to reduce the debt until they discovered this legal loophole) but new information received since has shown that these are not legally enforceable debts?

 

I agree that you might end up having to pay the others 100p in £.

[bill-k]

Hi guys, and thanks for coming back in so soon on this. Cheers Bong, for the go,go go !...and Gingerheid thanks for being the spanner - a thankless task !! I just need Glenn to come along now, and press the "stupidity" button !!!

 

Gingerheid - I think you uncovered one of my fears with this. Having got my creditors to accede to my TD, It does appear that we have some form of contract, in that I have agreed to pay them a reduced amount of the debt I had with them, in return for them accepting that guarantee.

 

However, it still occurs to me that, if the debt was in fact "unenforceable" then I have been fooled into thinking that taking out the TD was the only option, in the same way that the banks have fooled us into thinking that their charges were reasonable.

 

If these people have cut corners so much that they have rendered their "contracts" unenforceable, then I intend to exploit their weakness in the same way that they are prepared to do with me.

 

The PTD agreement is pretty ambiguous to my eyes, and I do think that any apparent creditors' entitlements are dependent on there being a genuine legal entitlement in the first place. If I stop making payments into my PTD, then my IP has the first claim on me, I guess. Well, OK., let him have his pound of flesh, that was the deal. But he has a legal obligation to look after my interests I believe. And if the creditors are not entitled under the CCA, then I would have thought that would be part of what his £xxx per hour fee covers. I am not expected to have his expertise - HE is. I even think he may be guilty of professional negligence, but I would rather keep that card up my sleeve for now.

 

That's the way I see it at the moment, but any further comment would be gladly received. In particular, Ginger, how much is yer average Personal Litigant expected to know ?

 

And Glenn - Bu99er off !!

[Gingerheid]

However, it still occurs to me that, if the debt was in fact "unenforceable" then I have been fooled into thinking that taking out the TD was the only option, in the same way that the banks have fooled us into thinking that their charges were reasonable

.....

That's the way I see it at the moment, but any further comment would be gladly received. In particular, Ginger, how much is yer average Personal Litigant expected to know ?

 

 

I'm afraid I could type the English law answer to that out, but it wouldn't help you at all because while many things are much the same or just have a different name, I know that once you delve deeper into Scots Contract Law it becomes different from (and entirely more sensible than) it's English equivalent.

 

I'd have to pass over to someone that knows Scots law for that one. The question would be:

 

You

- accept a credit token from a company

- use it under the terms of a contract

- make repayments on it in line with the contract

- struggle to make those payments due to financial difficulties

- probably negotiate with them during those troubles,thus tacitly acknowledging during those negotiations that the contract exists and it's terms have been broken through asking alternative terms be accepted

- approach a professional adviser for assistance with your problem of inability to meet the terms of the contract

- swear a document details your obligations under a contract on pain of prosecution if what you state is false

- have your adviser put those proposals to the creditors and ask for their agreement

- make payments under the terms of the agreement

- and at no time query whether or not there is a valid contract.

 

You then ask for a copy of an agreement, and on not receiving one claim that there is none.

 

Will it wash?

 

I'm afraid I know what an English judge would say.

 

I also think I know what an IP would say to wiggle his way out it:

 

"Dear Mr Other Creditor Not In Dispute, c/o LeechBank Plc

 

Mr Bill-k alleges that one of the claims in this PTD (for £xxx) is not valid. It will cost £xxxx in legal fees to dispute the claim, and this may or may not result in you getting an extra £xx.

 

Should I go ahead?"

 

If GrotDebtBulkBuy (no 6) Plc suddenly turns up out the blue asking you for £, and can't say who they are or why they're asking, then you have a strong case. I fear your circumstances are too different.

[Suzy H]

Hi guys

 

Longtime no speak Bill so sorry for posing this question on your thread ... not sure if you are still going after levied fees from accounts now handled by trust deeds but thought i'd pose a quick question as I have decided to do the same.

 

As you know my trust deed has finished and I am a free woman (so to speak lol) and I am now at MCOL stage with AMEX.

 

I had a letter from AMEX saying that as this account went into a trust deed I did not personally clear the balance therefore although I was charged fees I technically didn't pay them therefore I am not entitled to a refund.

 

Just wondering if you have come across the same brick wall? Any help appreciated

 

Cheers

[Gingerheid]

I think that what they've said (ie you can't get they money) is technically correct. Not sure if what they gave is the right reason though.

 

However fundementally your PTD drew a line in the sand, and you'd have had to have paid charges that overall were substantially higher than all your debts in the PTD to have anything you could take anywhere.