The Cons of Individual Voluntary arrangements as a remedy for insolvency in the UK
The Cons of Individual Voluntary arrangements as a remedy for insolvency in the UK
Written by Don Ace
The following article has be written based on my own research, if you are in such a situation where IVA’s are an option, I urge you to seek advice from the Citizens advice bureau or your own solicitor.
IVA’s main aim is to ‘provide an alternative and beneficial process to that of bankruptcy for those individuals who found themselves in a position of the most serious financial difficulties.’[1]
It can be argued that the root of IVA’s is held in the old 19th century method of deeds of arrangements.[2] Both of the methods hold the same key ideology or makeup, the main difference though is that a voluntary agreement is binding where as a deed of agreement could be rendered void by a bankruptcy procedure.[3]
IVA’s have a number of areas that’s end result could be a detriment to the debtor. The first of being regarding the requirement of 75% majority approval of the creditors[4]. If the proposal is rejected (or due to the arrangement being challenged[5]) by the creditors the fee for the Insolvency practitioner (IP) still stands and this cost ranging from about £1,200 is another burden on an already bankrupt individual, as well as leaving them under threat of court action[6].
Also if successful with the application and the IVA is accepted the extra fees for the IP (or nominee) are still applicable and must be paid first before any repayments are made to creditors, therefore if at a later date the IVA should fail, the debtor may be at the same or worse position as when he started.
A further problem may arise if the individual who made it is not an IP but another ‘authorised[7]‘ personal.[8] Which is most cases are private companies such as Loan Direct etc.
‘…the IVA procedure is reliant on the skill and judgement of the professional individual fulfilling the roles of nominee and, usually thereafter, supervisor.’[9]
The problem being therefore that a lot of these private firms who run these IVA’s ’sell’ the process as a miracle cure for individuals in debt and according to research[10]has resulted in an increase of IVA’s taken up (up to 28% of all bankrupts take this route), the problem being though that due to the business like nature of this professions with the individuals profiteering from the method, the question therefore must be put whether when creating these IVA arrangement do these nominee’s have the debtors best interest in heart, i.e. does it have a chance of succeeding or are they looking at their own bottom line and risk a high amount of failure[11].
Concluding then on the individual voluntary arrangements the time frame in which it occurs (up to five years) is in equal to other procedure though a lot longer than a default bankruptcy discharge though its benefit[12] arguably justifies the extra time. On the negative side though the extra expenditure in doing an IVA is great especially when an initial deposit is required and become an extra burden if it fails.
[1]Green, M (November 2002) Individual Voluntary Arrangements — Over-indebtedness and the Insolvency Regime, Short Form Report, http://www.insolvency.gov.uk/insolvencyprofessionandlegislation/policychange/ivapolicyresearch/ivapolicyresearch.htm — last accessed 14 April 2008.
[2] Tolley’s Insolvency Law and Practice, (1998) Vol 14, No 4 IL&P 230, 1 July 1998, The release of co-debtors under individual voluntary arrangements, Rick Munro Lamport Bassitt, discussing the judgment in Johnson v Davis.
[3]Page 79 Corporate and personal insolvency law.
[4] Consumer debt: causes and cures of financial distress by Sue Morgan. Ibid.
[5] S 262 IA1986 or s6 Sched A1 Para28 in the case of CVA’s
[6] http://news.bbc.co.uk/1/hi/business/1245757.stm
[7] Under s389A IA 2000
[8] Page 87 corporate and personal insolvency. Ibid.
[9] Page 321 of Insolvency legislation, annotations and commentary 2007ed. By L. Doyle and A. Keay.
[10] Consumer debt: causes and cures of financial distress by Sue Morgan. Ibid.
[11] Tolley’s Insolvency Law and Practice (2002) Vol 18, No 1 IL&P 9 1 January 2002New rules and new roles for the individual voluntary arrangement by Keith Pond
[12] 17% better realization of assets as compared to bankruptcy, ibid.
