secured creditor kicking me out

[nickelchao]

My secured creditor asks for the full repayment after the IVA started 2 months. She asked for the money to be repay otherwise the property will be sold and I will be kicked out. The only reason she has given is that she is not very happy about me (just because I am in IVA). So is there anything I can do to keep the property? By the way it is a business.

[MelanieGiles]

Who is the secured creditor? And what form of repayment do you have with this person?

Regards, Melanie Giles, Insolvency Practitioner for over 20 years.

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[nickelchao]

they are Barclays and it is the full mortgage payments

[MelanieGiles]

Sorry I don't understand. Are you saying that you have a mortgage with Barclays and that they are going to seek a possession of your property because you have entered into an IVA? Please clarify.

Regards, Melanie Giles, Insolvency Practitioner for over 20 years.

To have me propose an IVA for you, please visit:
http://www.melaniegiles.com/ivaEnquiry.asp

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[nickelchao]

yes.
i started IVA half a year ago and 3 months ago barclays called to ask the full mortgage payment. if we fail to do that, our property will be sold, as barclays is secured on the property.

[MelanieGiles]

On what basis are they saying the mortgage is now fully repayable? Are you up to date with your mortgage payments? And what do the terms and conditions of the mortgage say? I have never heard of anyone having a property possessed if they enter into an IVA, so I feel that there must be more to this than you have posted.

Regards, Melanie Giles, Insolvency Practitioner for over 20 years.

To have me propose an IVA for you, please visit:
http://www.melaniegiles.com/ivaEnquiry.asp

See customer feedback at:
http://www.iva.com/iva_companies/IVA_Advice_Bureau.asp

[nickelchao]

yes, i keep up all my payments.
well, they claim that since i am in IVA so they can request for the full mortgage payment.

[nickelchao]

in addition, the reason they give is that i am in IVA and barclays is not very happy about it and they are secured on the property so they have the right to request the mortgage to be paid in full.

[nickelchao]

does the government provide any legal aid to clients who are in this situation? and what department should i contact?i have tried to contact the bankruptcy department but didnt manage to get good solution.

this is so not fair to take away my flat because i have entered IVA. There is nothing to do with the property.

[MelanieGiles]

You should take immediate legal advice on your position, because an IVA is not supposed to affect the rights of secured creditors. Find a good solicitor locally who has an understanding of insolvency procedures.

Regards, Melanie Giles, Insolvency Practitioner for over 20 years.

To have me propose an IVA for you, please visit:
http://www.melaniegiles.com/ivaEnquiry.asp

See customer feedback at:
http://www.iva.com/iva_companies/IVA_Advice_Bureau.asp

[nickelchao]

Thank you very much for your advises.

[mikebdomain]

I'm afraid if you read the small print of your mortgage conditions it will probably contain a provision declaring that the mortgage debt becomes immediately repayable in circumstances where the borrower enters into any arrangement with their creditors, including an IVA.

This provision is pretty standard in most commercial and residential mortgage contracts. The difference with a commercial contract is that it is not regulated by the FSA so lenders feel they can act according to the terms of your contract, whereas with a regulated mortgage contract the lender is less likely to invoke this provision (although it is not unheard of) as FOS and the FSA are likely to get involved if a complaint is made.

I would agree that you need to seek legal advice, but be prepared for the solicitor to advise you that; according to the terms of the contract you will not have a leg to stand on.

Your best option is to stand firm, continue to make your commercial mortgage payments and see if you are able to remortgage away from your existing lender, to one which will allow the IVA to be in place.

If your current lender starts repossession proceedings, apply to your local court for an emergency hearing (costs around £70.00) and ask the court to suspend the repossession until you are able to remortgage.

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[mikebdomain]

Sorry I was typing whilst you were explaining in more detail, as I understand your recent post you say the commercial mortgage was secured on your residential property? Is that right?

[nickelchao]

the commercial mortgage is secured on the whole building including the business and the flat above.

[nickelchao]

Mike, which department do i contact? is it the one where my IVA was approved? and by the way, the deadline that the lender given is until the end of this year. do you think i have enough time to apply emergence hearing? by the way, i have been looking for remortgage from vary commercial mortgage company and only one has provided a mortgage but it is still in process.