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[Shawn Lowe]

Hiya

I was sequestrated in July 2009 and discharged in July 2010. The Account In Bankruptcy have raised an action for the court to grant them permission to force the sale of my home. A creditor who was not named as part of my sequestration is pushing for this to happen? Can he do this legally?

[Geraldine]

HI there Shawn and welcome to the forum.

I have to say that I am not sure about this. I am sure one of the experts will be along shortly to help.

[Steve Jackson]

Hello Shawn

If the creditor existed at the time that you were sequestrated then they are also legally bound by your bankruptcy even if they were not listed as a creditor. Why were they not listed origionally? Were they forgotten?

[Amy Jellings]

Hi Shawn.

The decision whether to sell your home is one for your Trustee, not any individual creditor.

If this creditor existed at the time of your sequestration their debt is included in the bankruptcy whether or not your Trustee was made aware of them.

Your Trustee has a legal obligation to recover money for your creditors if it can be raised from assets and/or surplus income. If you own a home that has equity in it, that equity has "vested" in your Trustee for the benefit of your creditors.

It doesn't mean that the home has to be sold necessarily though. Some people are lucky enough to be able to get a third party to pay over a sum equivalent to the equity in the home instead of a sale going ahead.

[Shawn Lowe]

Thank you for your help and advice so far.

The creditor in question is a firm of solicitors who have won a court action against me regarding my late husband's estate. This was ongoing at the time of my sequestration. Does this mean that they existed at the time of my sequestration even though the judge had not ruled for them at that time?

If so I do understandwhether or not a sale happens depends on the equity available but according to the Home Owners Protection ect (Scotland ) 2010 s.4, states that I should have been offered other reasonable options such as a DAS as a remedy to this action , and was not. Would it be possible to enter into a DAS now or is it too late? I should also have been given the option to enter into a Trust Deed as the new legislation 'The Protective Trust Deeds (Scotlang) Amendment Ast 2010', would have protected my 'dwellinghouse'. I am also aware the Sheriff can exercise the said Act and dismiss the Order as being considered in the circumstances (in regards to the initial sequestration and my circumstances at the moment; when I place them before the Court) 'Harsh', or postpone the application for up to 3 years.

I would welcome any suggestions....

[Hayden]

Hi Shawn

I am not an expert in Trust Deeds but from what you are saying it seems to be that this solicitor's debt would be included in the sequestration. However as Amy has said, whether or not a house should be sold is up to our Trustee I an not sure that any individual creditor can influence their decision.

In terms of whether you can argue against the sale if the Trustee decides to press ahead with it, I think you would have a tough battle but I would be interested to hear the other experts views on this.

[Steve Jackson]

Hi Shawn

I also feel that you will have a tough battle on your hands to prevent your Trustee selling your property is this is what they feel should be done. However this does not mean that you should not put up a fight particularly if you feel you have reasonable grounds to be allowed to stay in your home.