Trust Deed Forum - Joint and several overdraft
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Just Joined

2 Posts

Posted - 24 July 2017 :  21:49:24  Show Profile  Reply with Quote
Included in my trust deed is an overdraft which was joint and several. I recently found out that the business partner that caused me to enter my trust deed has been forced by the bank to pay it back and he has raised an action against me. His lawyer is saying that as I entered my TD in 2015 and the partner paid it back in 2017 my TD predates the 2017 payment so I am due him half.Do I need to worry about this?
Any advice greatly appreciated

Advanced Contributor

305 Posts

Posted - 25 July 2017 :  00:30:18  Show Profile  Reply with Quote
I know it's late, I know I'm weary (apologies to Bob Seger) but I think that this is how it would work -

- the bank could go after you or your business partner as it's a joint and several liability

- if one of you pays it all, you could go after the other for half of the debt

- your half of the debt (or your total liability for the debt) is included in the TD that you signed in 2015

- your business partner will be a creditor in your TD instead of the bank and will get the same percentage as all your other creditors

Remember, it's late, I'm weary - see what the experts say!
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Voice of Reason
Advanced Contributor

107 Posts

Posted - 25 July 2017 :  07:57:25  Show Profile  Reply with Quote
Agree with Candlewick. As far as I am aware the Partner would have something called a Subrogated claim within the Trust Deed.

Should that be the case then this is relatively common in other areas of insolvency so your Trustee should be made aware of the position and thereafter be able to deal with the matter relatively swiftly. Contact them and provide them with correspondence received from your Partner's solicitor.

Edited by - Voice of Reason on 25 July 2017 07:58:36
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TDA (Debt Adviser)
Trust Deed Expert

12472 Posts

Posted - 25 July 2017 :  09:59:48  Show Profile  Reply with Quote
Hi Build222.

Thank you for asking such an interesting question here. This forum has been running for nearly 10 years, so it's not often that a question comes along that isn't a variant of one that we've had before. I cannot remember a similar scenario being raised here before.

For what it's worth (I'm a humble debt adviser, not a solicitor or an insolvency practitioner) it feels like your former business partner may not have been well advised here. I doubt that this is going to turn into a problem for you, but please let us know how the situation develops.

Qualified Debt Adviser & Forum Administrator - Ask me anything about Trust Deeds    
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Just Joined

2 Posts

Posted - 25 July 2017 :  20:57:52  Show Profile  Reply with Quote
Thanks for your replies. Glad to hear that your thoughts are in line with what my understanding was. Still concerning that a solicitor can advise like this though
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Kevin Mapstone
Trust Deed Expert

3549 Posts

Posted - 31 July 2017 :  12:15:22  Show Profile  Reply with Quote
Hi Build222

Apologies for delayed response - I've been on holiday without any internet access - though it seems like you have been well-advised by other members already.

Thought it was worth adding my voice as one of the site "experts" just to confirm what the others have said. The former partner cannot force you to pay half of what was owed but can make a claim in your Trust Deed and receive a dividend from that instead. No need for you to worry - just pass the info on to your trustee and they should deal with the other party on your behalf.

Recommended Partner & Trust Deed Expert - Ask me for help setting up a Scottish Trust Deed    
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Advanced Contributor

115 Posts

Posted - 02 August 2017 :  11:05:19  Show Profile  Reply with Quote
For whats its worth, If you end up in court it would be worth while attending to avoid a decree being awarded and posted on your public records. from my experience they can be marked as satisfied but only if they have been repaid in full so this means if they get a dividend below that you are ordered liable for it will stay on your record for 6 years from the date the decree was awarded and that could mess up your credit worthiness for longer.

If you go to court to explain your case it could be the difference of having the decree awarded or not. You could ask for it to be set aside as the debt existed before you applied for the PTD and is is included in that.

In my experience not turning up to court automatically results in the decree being awarded and you have to be quick (21 days) to make a request to the court to have it set aside in that case (which they may not do). If you run out of time the court will make the request for the registry trust to post the information on your public records.
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