Author: angela

What is an IVA and is it right for you?

 What is an IVA?

An individual voluntary arrangement (IVA) is a legally binding contract between an individual (the debtor) and his or her unsecured creditors, under which the debts owed by the debtor to his or her creditors will be compromised by time and or amount, depending on the debtor’s financial circumstances.

Typically, an IVA will enable the debtor to repay a proportion of his or her debts over a period of time; usually no longer than five years. The proportion to be repaid (the ‘pence in the pound’) will be determined by what the debtor can afford and what the creditors are prepared to accept.

In any event an IVA should offer a better outcome for unsecured creditors than if the debtor were to be declared bankrupt.

What is the role of an Insolvency Practitioner during an IVA?

The IVA proposal is prepared by the debtor with the assistance of an Insolvency Practitioner (IP). Provided the IP is satisfied that the proposal is, amongst other things, fit, fair and feasible, he or she will agree to act as ‘Nominee’ and place the proposal in front of all the creditors.

An IVA must be approved by 75 per cent by value of a debtor’s unsecured creditors. If the proposal is accepted, the Nominee becomes the Supervisor of the IVA and it will be his or her responsibility to ensure that the terms of the IVA are adhered to.

When an IP is first approached by a debtor with a view to proposing an IVA, he or she should always make the debtor aware of the alternative courses of action which are available. The IP should provide a copy of, or provide the website link to ‘Is a Voluntary Arrangement right for me?’. This is an explanatory leaflet on IVAs published by R3 – The Association of Business Recovery Professionals.

What are the benefits of an IVA?

For the debtor, the principle benefit of an IVA is that it avoids the restrictions of bankruptcy, under which a debtor cannot:

borrow more than £500 without telling the lender that he or she is bankrupt

act as a director of a limited company or be involved in the promotion or management of a limited company

  • carry on business under a different trading style
  • be a trustee of a charity
  • work as an insolvency practitioner
  • sit or vote in the House of Commons or the House of Lords
  • be a school governor
  • be a solicitor or accountant

If a bankruptcy petition has been issued, this can be superseded by an application for an Interim Order, allowing the debtor time to propose an IVA.

Whilst the fact of an IVA is a matter of public record – it is entered onto the government’s Individual Insolvency Register – the contents of the proposal remain confidential between the debtor and his or her creditors.

When might an IVA be a good option?

An IVA might be the right option if:

  • a debtor runs a good business but it is insolvent, then an IVA offers the best practical solution to save the business and repay monies to the creditors
  • by virtue of a person’s job or profession – e.g. accountant, solicitor or MP – bankruptcy would prevent them from earning a living then an IVA would be the preferred alternative
  • a third party will put in money for creditors to preserve the family home

What are the disadvantages of an IVA?

Despite its appeal, there are naturally some disadvantages to an IVA, including:

  • A ‘contributions based’ IVA can last up to five years. An income payment agreement in bankruptcy, however, typically lasts three years.
  • As every IVA is recorded on the Individual Insolvency Register, it will appear on any credit reference searches for up to six years, leading to possible difficulties in obtaining future credit.
  • The initial costs of an IVA can be significant. The Nominee’s fees may have to be paid by the debtor up front, which may be a lot to ask of a debtor already in financial straits.
  • If a debtor fails to comply with the terms of the IVA the Supervisor will be obliged to terminate the IVA, thus exposing the debtor once again to his or her unsecured creditors. The Supervisor may also be obliged upon the failure of the IVA to petition for the debtor’s bankruptcy.

What are the alternatives to an IVA?

If you have nothing to lose, for example if you live in rented property and bankruptcy wouldn’t have a detrimental impact on your ability to earn a living, then an IVA might not be right for you and bankruptcy may well be the most appropriate solution.

There are some other alternatives to an IVA, including:

  • a debt management plan (DMP) – administered by a debt management company, they will collect money from the debtor each month and share this between the creditors in proportion to their debts. Debtors should be aware that creditors may continue to charge interest on their debts or may decide not to participate in the process. Unlike an IVA, a DMP is not a legally binding agreement.
  • doing individual deals with creditors – this may be feasible if the number of creditors is relatively small and creditors are willing to cooperate.
  • a debt relief order (DRO) – this is only available if debts are less than £20,000, net assets are less than £1,000 and the debtor has disposable income of less than £50 per month.
  • do nothing – clearly this has its own inherent risks.

https://www.thegazette.co.uk/all-notices/content/103510

What restrictions are there during bankruptcy?

Upon the making of a bankruptcy order, for a period of twelve months thereafter the person declared bankrupt (the debtor) has certain obligations to his or her trustee in bankruptcy and certain restrictions placed on his or her actions and conduct.

These restrictions are summarised below. The debtor cannot:

  • borrow more than £500 without telling the lender that he or she is bankrupt
  • act as a director of a company or be involved in the formation, management or promotion of a company without the court’s permission carry on business in a name or trading style different to the one under which he or she was made bankrupt
  • be a trustee of a charity
  • work as an insolvency practitioner
  • sit or vote in the House of Commons or the House of Lords
  • be a school governor
  • be a solicitor or accountant

How long do bankruptcy restrictions last?
In short, restrictions last until an individual’s bankruptcy ends. Provided the debtor cooperates with his or her trustee in bankruptcy and has not been dishonest, the debtor will usually be free from restrictions when twelve months have elapsed. If the debtor has not cooperated, the trustee in bankruptcy may apply to the courts to have the twelve months automatic discharge suspended until the debtor cooperates.

Furthermore, if upon investigation it comes to light that the debtor is found to have committed a bankruptcy offence then the Official Receiver (OR) may impose a Bankruptcy Restriction Order (BRO) or accept a Bankruptcy Restriction Undertaking (BRU) from the debtor.

Offences giving rise to a BRO or BRU include:

  • gifting or transferring at an undervalue bankruptcy assets
  • preferring one creditor over another
  • borrowing money in the knowledge that it cannot be repaid
  • neglecting business affairs and in so doing increasing the debts of the business
  • not cooperating with the Official Receiver
  • fraudulent or dishonest behaviour, for example providing false information to obtain credit

 

If a debtor willingly accepts the OR’s findings or wishes to avoid the time and costs of attending court by reaching an agreement with the OR, he or she may provide the OR with a BRU. Typically, this will increase the bankruptcy restriction period from twelve months to three to four years.

If no BRU is provided, the OR can make an application to Court for a BRO to extend the bankruptcy restriction period to between two and fifteen years. This effectively brings the bankruptcy restrictions regime in line with company directors disqualification guidelines in that a company director found guilty of an Insolvency Act or Companies Act offence can be disqualified from being a director for two to fifteen years.
https://www.thegazette.co.uk/all-notices/content/103448