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Individual Voluntary Arrangement
What Is An Individual Voluntary Arrangement?
An IVA is a legally binding arrangement supervised by a Licensed Insolvency Practitioner, the purpose of which is to enable an individual, sole trader or Partner ("the Debtor") to reach a compromise with his creditors and avoid the consequences of bankruptcy. The compromise should offer a larger repayment towards the creditor’s debt than could otherwise be expected were the Debtor to be made bankrupt. This is often facilitated by the Debtor making contributions to the arrangement from his income over a designated period or from a third party contribution or other source that would not ordinarily be available to a Trustee in Bankruptcy.Unlike the unregulated informal debt management products actively being marketed on radio and television, an IVA is legally binding and precludes all creditors notified and therefore included in the IVA from taking any enforcement action against the Debtor post-agreement assuming the Debtor complies with the his obligations in the IVA.
Who can benefit from it?
An IVA is available to all individuals, Sole Traders and Partners who are experiencing creditor pressure and it is used particularly by those who own their own property and wish to avoid the possibility of losing it in the event they were made bankrupt. It is also often used by sole traders and Partners who have suffered problems with their business but wish to secure its survival as they believe it will be profitable in the future enabling them to make a greater repayment to creditors than could otherwise be expected were they made bankrupt and the business consequently were to cease trading.
The Procedure in Brief
In theory it is envisaged that the Debtor drafts proposals for presentation to his creditors prior to instructing a Nominee, (who must be a Licensed Insolvency Practitioner), to review them before submission to court and then to the creditors.In practice the Nominee draws up the proposal upon the information provided by the Debtor and submits these to court with his comments on the merits of the proposals with a view to obtaining an Interim Order.
An Interim Order is an order made by court precluding creditors from taking any action against the Debtor whilst a meeting of creditors is called and held to decide whether the proposals are acceptable to them or not.
Following the granting of the Interim Order the Nominee will circulate to creditors the following information:-
The Nominee’s comments on the debtor’s proposals.
The Proposals.
Notice of the date and location of the meeting of creditors to vote on the proposals.
A Statement of Affairs this effectively being a list of the assets and liabilities of the Debtor
A schedule advising creditors of the requisite majority required to approve the IVA.
A complete list of creditors
A guide to the fees charged by the Supervisor following approval of the IVA.
A form of proxy for voting purposes.
The creditors meeting is held not earlier than following 14 clear days notice after the above has been circulated to creditors. The purpose of the meeting of creditors is to agree or reject the Debtor’s proposals with or without modifications which can be requested by creditors at the meeting. Acceptance of the proposals requires 75% in value of those creditors who vote either in person or by proxy at the meeting. Please note that the 75% relates only to those who actually vote and assuming the creditors receive notice of the proposals, all will be bound by the terms of the arrangement whether they voted or not.
Upon approval of the IVA, a Supervisor is appointed (usually the Nominee) to ensure the proposals are adhered to and to distribute the dividends to creditors.
Assuming the debtor complies with the terms of the arrangement, upon completion of the IVA he will be fully discharged from all liabilities included within it.
Key Components For A Successful IVA
The IVA must offer a higher return to creditors than could otherwise be expected were the Debtor to be made bankrupt.An honest declaration of your assets and/or anticipated future earnings should be made. Material or false declarations are likely to result in the subsequent failure of the IVA.
Advantages of an IVA
Individual, Sole Trader or PartnerAvoids the stigma or publicity of the bankruptcy.
Enables a Sole Trader or Partner to continue to trade and generate income towards repayment to creditors which would otherwise have a call upon the personal assets of the individual.
No restrictions as regards personal credit although in practice can prove difficult to obtain.
The proposals are drawn up by the Debtor and are entirely flexible to accommodate personal circumstances. An example of this may be to exclude the Debtor’s property from the IVA assuming the Debtor can adequately satisfy creditors that the outcome would be better for them by agreeing to this than could otherwise be expected if a bankruptcy order was made.
The Debtor does not suffer the restrictions imposed by bankruptcy, such as not being able to act as a director of a limited company etc.
Creditors
The costs of administering an IVA are considerably lower than in bankruptcy, enabling a higher return to creditors.
IVA’s operate as an insolvency procedure and creditors can, as a consequence of this, still reclaim tax and VAT relief as a bad debt.
Disadvantages of an IVA
Individual, Sole Trader or PartnerFees for the procedure can be high therefore the procedure is only really suitable except in exceptional circumstances, to those debtors with unsecured liabilities of at least £10,000. Please note however, that fees can be paid out of the proceeds paid by the Debtor into the arrangement and unlike many firms offering this service, BRA requires only payment of £350, this being required to settle the costs of the court application and the postage and stationery costs involved in circulating creditors. This up front cost is the equivalent of that payable by a Debtor’s petitioning for his own bankruptcy.
Where contributions from income are being made, IVA’s are generally expected to be for a period longer than that in bankruptcy, i.e 5 years as opposed to 3 years. The 5-year period is often required by creditors as a bargain for allowing the Debtor to avoid the consequences of bankruptcy.
If the Debtor fails to comply with the terms of the arrangement, his home and assets can still be at risk if they have not been specifically excluded from the proposals.
If the IVA fails as a consequence of the Debtor not meeting his obligations under it, it likely that the Debtor will be made bankrupt at this time.
All IVA’s are recorded in a public register and throughout the period of the arrangement, the Debtor’s credit rating will be affected.
Creditors
No opportunity for a Trustee in Bankruptcy to investigate the actions of the Debtor or possibility of hidden assets.