How a Trust Deed could save your ‘castle’

In 1997, Marian van Overwaele refused to pay a £230 bill for bridalware. In 2010 – thirteen years later – she and her family are granted a 14-day reprieve from eviction of her home – Knockderry Castle – after the legal costs defending the non-payment of the bill reached almost £1 million and caused her to be sequestered. To this day, no-one really knows why the case became so drawn out, expensive and antagonistic, but one thing is clear; like many cases before this one, things got out of control quickly and points in the proceedings where everything could have been resolved were missed. A number of debt solutions were available for the debt to be paid, but none were used.

The background to case starts simply and then veers off into one of the most complex legal cases Scotland has ever seen. After Mrs Van Overwaele failed to pay a £230 bill, a bridalware company took her to court for non-payment and was granted a court order against her. Despite this, Mrs Van Overwaele still did not pay and in 1998 the courts served a demand for £1573, the original £230 bill plus interest, expenses and costs. Mrs Van Overwaele still did not pay. In January 2000 Mrs Van Overwaele is sequestered for non-payment of the debt and her case is handed over to an Insolvency Practitioner.

It was then that Mrs Van Overwaele tried to pay £1800 towards the debt, which was refused as by this time she was legally bankrupt and the debt had mushroomed to £30,000. A subsequent appeal by her to the Sheriff was turned down in 2001. Mrs Van Overwaele appealed against the sequestration to the House of Lords in October 2002 and to the Court of Session in 2004, both of which were dismissed. By December 2009, Mrs Van Overwaele had appealed to the Court of Session again, this time to stop the repossession and sale of her home – the £3million Knockderry Castle. This also failed. In January 2010 Mrs Van Overwaele sold the castle to her brother for £1million in an attempt to prevent it being sold by the Insolvency Practitioner. While the sale went through, the legal system did not see it as a legal because the castle did not belong to her but to the Insolvency Practitioner appointed to help her creditors recover their money. In October 2010 the bailiffs moved in to evict the family, but the family were given a temporary stay of execution and there they still are until the next round, some £700,000 worse off than they were 13 thirteen years ago and having cost the state and other parties concerned just under £300,000 to prosecute.

So what lessons can be learned about sequestration and debt solutions like Trust Deeds from this high profile case?

1) Complain quickly and use the correct procedures.

If you have a complaint about goods or services and you do not wish to pay, you must make your refusal to pay and the reasons why known quickly and in writing. If you do not tell a company and simply decide not to pay a bill, when you are taken to court you stand a greater chance of the case going against you for failure to pay. You are assumed to be happy with goods and services if you do not complain.

2) Do not ignore court orders

Whatever you do, do not ignore a court order and hope it will go away. By all means appeal, or if you feel that things are escalating beyond a point where it makes financial sense to carry on, pay what you owe and put it behind you. If you cannot pay at the moment, try and arrange a payment plan, either outside of or inside of a DAS or Trust Deed.

Refusing to pay out of anger, ‘principle’ or denial will only serve to make the case against you stronger and more likely to succeed if your creditors take you to court to request your sequestration to recover their money.

3) Understand the consequences of missing deadlines

Mrs Van Overwaele repeatedly failed to respond to important developments in her case. The only occasion where she attempted to make a payment was after her sequestration, far too late to do anything as all of her assets were the legal property of an Insolvency Practitioner. Perhaps she didn’t understand what was happening, perhaps she underestimated the severity of what was happening. She may even have been in denial that her home could ever be taken over a debt so small. Whatever the reason, missing deadlines for payment and legal responses has led Mrs Van Overwaele down the path she is on.

Trust Deeds can turn a really bad situation around very quickly, although they wouldn’t have worked for Mrs Van Overwaele, as she had the money to pay off the debt but for her own reasons chose not to. Hers was case of ‘won’t pay’ rather than ‘can’t pay’. However if your ‘castle’ is in danger of being repossessed because you are in financial difficulty or you have debts you can’t pay any longer, then a Trust Deed could help stop your problems spiraling out of control.

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