How would I start to challenge a bank whose going after me for bankruptcy through a pg where I disagree with the amount because I believe the properties that the bank repossessed and sold where sold under value. I realise this may take a long time to get to court but I wish to take out the action now as I'm considering an IVA and do not want them to have the casting vote as I believe they claim is injust.thank you
State/Country relating to question: United Kingdom
1. It is a principle of UK law that a bank selling repossessed properties is under a duty of care to realise the best price possible for the (distressed) asset being sold. Where the best price possible is not obtained, such as where the property was sold in the middle of winter with snow on the ground, then the person affected is entitled to sue the bank on this duty of care for the difference between the price for which the property sold and the amount which ought to have been got for it. However, you will have to have professional evidence to the effect that the properties were sold at an undervalue and did not realise their fair price. Accordingly, your cause of action is definitely stateable and you can certainly issue legal proceedings on this basis. However, to litigate it, you will need expert evidence to back your claim. The alleged debt would then be in dispute for the purposes of the IVA.
Barrister 17 years experience
2. In order that a bankruptcy petition can be presented on the basis of a debt owed, the debt must be due and enforceable. Where call is made on a personal guarantee, then the sum becomes due and enforceable. I regret to say that just because there is security over an asset as well, this does not prevent the debt being due and enforceable. Just because an asset can be sold to diminish or extinguish the liability on the guarantee, this does not make the surety and the less liable. Accordingly, a bankruptcy petition can be presented on the basis of a personal guarantee even though there are assets which can be sold to reduce the liability on the guarantee. Be aware that the bankruptcy court has a discretion in determining a bankruptcy petition in assessing whether there are sufficient underlying assets which if sold would make bankruptcy proceedings unnecessary. However, this does not prevent a petition being brought based on a personal guarantee.
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