Is an administrator regarded as an agent

[nick.d]

Is an administrator in an I.V.A. regarded as an agent (as defined by the Law of Agent and principal)? Who does the administrator represent in the matter? Is the Administrator regarded as agent to the debtor?

[MelanieGiles]

Hi Nick and welcome to the forum

The Administrator is an officer of the Court, and as such is responsible to the company, its creditors and the Court for his/her actions. The role of the Adminstrator, in broad terms, is to rescue the company or achieve a better realisation for the assets than would be available under a winding-up.

[nick.d]

Dear Melanie, thank you so much for reading my note. But whether a Company or an individual, my question is "would an Administrator be regarded as agent for the debtor"; in my case a personal IVA, would the actions of the Administrator be regarded in Law as that of my agent? (for example, in distributing proceeds of the IVA)

[nick.d]

to double check the point, is the exact status of an Administrator defined in Law?
xx

[nick.d]

Sorry!!! Just to clarify, I'm not seeking to identify the duties and responsibilities of the Administrator, only their actual "Locus Standi" in terms of who they represent? Are they, for example, deemed to be "agent" for the purpose of the administration and if so, to whom?

[ianmillington]

Hi Nick

In Insolvency Law in administrator is appointed primarily to a company. It is an alternative appointment to a liquidator or Receiver etc.

The personal insolvency office holders are:

Trustee in Bankruptcy
Supervisor of an IVA
Administrator of an insolvent estate of a deceased person
One or two other highly obscure appointments which I won't go into.

Hence the confusion.

The officeholder in an IVA is therefore a Supervisor who will only be an agent of the debtor if the proposal says so. Given the role of the Supervisor as an intermediary and trustee of a fund for the creditors, such a provision would normally be inappropriate. Under certain conditions, the Supervisor can also be attorney of the debtor, eg to force realisation of an asset.

I assume your question refers to the old doctrine of where a clumsy agent may become liable for the acts and defaults of his principal, or vice-versa, if he has held himself out to be the principal?

Ian

[nick.d]

Dear Ian thanks to you as well, I dont want to be a pain, or sound like a barrack room lawyer, but your assumption is not far from the mark, however the issue is not one of incompetence on either side, merely a slightly complex issue relating to the Supervisor (thanks for the clarity of definition)

It relates to the Limitations Act. If a (part) payment was made by the Supervisor to a creditor as part of a distribution then would that payment (solely for the purpose of the Act) be regarded as a payment made as "agent" for the debtor? It's relevant to me because after many years, I am being pursued for a shortfall under a repossession. From the time of the IVA (when the debt was therefore acknowledged) any action would now be out of time, but the actual payment was made some three years later, therefore was just within time to allow the creditor to commence an action. But the Limitations Act expressly states that a payment (made by a person other than the debtor) only bind the debtor if that payment was made as agent for him. So, in effect, a payment made by a third party would NOT prejudice my right to the benefit of the Limitation Act provided that third party was not deemed to be my "agent" for the purpose.
(the Act is quite specific on this point)


N

p.s. It makes sense, in fact, that only the debtor/or his agent is relevant, because I guess that if any third party could make a payment, however small, just before the expiry of the time limits imposed after which an action cannot be brought, then anyone (even such as the creditor!!) could simply pay a small sum off the debt, to create a new extension (re-set the clock!)on the Act!! (silly point really!)

[MelanieGiles]

The Supervisor makes the payment on your behalf through his office as Supervisor of your voluntary arrangement, as appointed by your creditors. I do not believe that this would constitute an agency, but Ian may have other views and you ultimately need to seek proper legal advice on this issue.

If the debt relates to a mortgage shortfall, was this not expressly included as a debt within the arrangement and, is so, why are you being pursued for it now?

[nick.d]

Well, I reckon we are all nuts for still being up on our PC's for a start! But thank you so much for replying again!

Indeed, your last point is my first one!!

I had fretted hugely when the debt collectors letter arrived a month or so ago, since my IVA was in 1993 and I was vaguely familiar with the Limitations Act and as such replied to him that he was way out of time. But my wife was party to the mortgage at the time, and when the debt collector noticed that a payment HAD been received (in Oct 96) then said he could sue her instead, since that payment represented an acknowledgment of the debt (shortfall) and the Limitations Act provides that... a payment made by one debtor shall...bind..the co-debtor..

Thus taken at face value, that payment may have estopped my wife from being able to argue the out of time rule. But, as I said, the Act does also make it clear that the payment (if made by a third party) can only be made..by the debtor..or..his agent...

See? What a ***! (any expletive will do!)
The deby agent is aggressive, and of course, seems to have "acquired" loads of old debts which look dead, and is making a good job of putting on the pressure. Lot of money involved as well. euch....

[nick.d]

Really, its not fair to bother you anymore since I guess I'm (hopefully) not a potential customer! But just wondered about precise - exact - definition of the Supervisors status, as put in my earlier note. I must say that common sense (dangerous!!) does indicate that a Supervisor could not be deemed to be an agent for the debtor, it would, as ian said, by highly innapropriate, since the Supervisor is kind of representing everyone...

[MelanieGiles]

I agree with Ian - but do run it by an insolvency lawyer.

[nick.d]

Yes indeed, and thank you both. Are there any legal definitions for the position of Supervisor or any Act which covers an IVA?

[MelanieGiles]

You need to refer to the Insolvency Act 1986 and the Insolvency Rules 1986.

[ianmillington]

Hi again Nick

I have been contacted by a number of people who are being suddenly pursued by a company that has taken assignments of debts that are on the cusp of becoming statute barred or probably already are. They appear to be acting in such a way (issuing statutory demands seems a favourite) so as to provoke a response, and an acknowledgement, to revive the debt. Is that what is happening here? A lovely way to earn a living ..I don't think.

So the mortgage shortfall was included in your IVA and the creditor received dividends? You will need to take expert legal advice on this but my view is that the dividend was paid out by the Supervisor to beneficiaries of a trust, that was set up on the approval of the IVA and not as your agent. So long as you fulfilled your IVA obligations all those years ago and the IVA did not unravel, I see the payments as contributing to the discharge of the debt, rather than it's revival. However, I'm now being the barrack-room lawyer so I'd better shut up!

I assume the sum of money involved is substantial? I believe the best thing that Melanie or I can do for you is to point you in the direction of a good lawyer who can help you. Where do you live?

Ian

[nick.d]

Well, you are a glutton for punishment! Thank you Ian. In fact there are two issues, but the main one is this point about whether the payment (which was made Oct 96 so just still within the 12 year rule) could be deemed to be made by my or my "agent"; the other one is far less likely to be relevant which was that in 1993 when I entered into the IVA I was heavily in arrears but the property had not been sold. I declared a sum of £30K on the IVA without much analysis but based on a guess at the arrears figure at the time. The point is that in fact, when I think back, that debt was still a secured debt, so I'm not sure whether in fact it should have even been included in the IVA!

Yes, the IVA was closed up after about 3 years, with no problems along the way. It was at the time of closing that the payment was made (being about 20% of the declared amount) At the time, the mortgage Co did not reply, amend the amount declared, or vote. Actually, did nothing.

And nothing since until a month or so ago.

Dangerous stuff, common sense, but I agree with you (so what!) that if you, as Supervisor, were regarded as my agent, then it follows I am your principal; but you are not acting for me, you are acting for all concerned, as Melanie said.

I live in North London.

Nick