After IVA completion where certificate of completion is held with no proviso for PPI, what are you doing with PPI monies sent to you by banks? Why are you cashing them and not complying with Green v Wright?
Last edited by Cloudy.45 on Mon May 23, 2016 4:35 pm, edited 1 time in total.
My IVA successfully completed approx. 5 years ago. I have the completion cert and report. More was paid in than anticipated.
Very recently I received a letter saying the TSB have sent a cheque to DFD for PPI refund.
TSB have acknowledged receiving faxed and posted copies of the completion certificate and report from the Court, which ends an finalises all contact and dealings with any IVA Supervisors.
Nevertheless, I am told by TSB that DFD cashed the cheque.
I have such terrible health at the minute and stresses just thinking about those IVA days! I believe it is the TSB’s error and they should correct it themselves in line with Green v Wright.
I also believe a breach of data protection by the TSB who seem to be ignoring the completion certificate they could also check the Insolvency register but seem incapable. Their letter to me said I am in an IVA which I am not. I am copying all info the the FOS. I may need to send it to the Insolvency service also.
The whole thing is making me feel ill. The TSB have taken over a month to do nothing than send an acknowledgment letter and say as soon as DFD tell them they have no interest they will be able to sort it out and issue a cheque to me?
Why have DFD not complied with legislation and forwarded the cheque to me or co-operated with the TSB's enquiries?
I feel like I am in a circus!
Companies including DFD should not be cashing cheques which legally do not belong to them as in Green v Wright and saying nothing about it to the former debtor whose is favoured in the case eferred to.
My understanding is the difficulty is that Green v Wright has not finalised because it is going through the Court of appeal so there is currently no president case law to use as guidance.
If an IP pays money back to a debtor and it is later found it should have been paid into the IVA trust they are risking their license.
I'm afraid it is not a black and white simple issue which is no doubt why the Wright v Green case has come about in the first place.
Green V Wright is not likely to be heard now until next year as far as I am aware - so until it is sorted then I believe they are entitled to keep the PPI as it was an asset in your IVA.
Sharing from experiences of dealing with debt
The greatness of a man is not in how much wealth he acquires, but in his integrity and his ability to affect those around him positively.
Bob Marley. http://kallis3.blogs.iva.co.uk
Green v Wright has already been heard and the exact legal position at the moment is as in Green v Wright, so in my opinion if your case fits this there is no right to cash cheques or hang on to the money. A court report that says there will be no further reports etc. and your IVA in lawfully finished is a legally binding contract. However I see why IVA companies ma not want to acknowledge this as they will be hanging on to millions of pounds potentially and as they have already had their fees for completion of an IVA and won't get any more they will not want to deal with these issues either as they are not current money makers for them any more. What a mad world we are in. Money saving expert gives more advice as do many lawyers who agree with what I am saying here.
All relationship with any IVA provider etc ends upon completion as long as there are no provisos in the certificate, that's it as far as I can see.
The High Court in Manchester has already ruled in favour of the debtor in a dispute over voluntary arrangements. The decision was 9 February 2015.
background
An individual had entered into an IVA with his creditors. An IVA is a legally binding agreement between an individual and their unsecured creditors. Such agreements normally last for five years and during that period the debtor makes payments they can afford and/or realises assets available. Such payments are made to a supervisor who must be a licensed insolvency practitioner. At the conclusion of the IVA the funds held by the supervisor are distributed by way of dividend to the creditors bound by the IVA and such dividend is accepted by those creditors in full and final settlement of the debt. Any balance is written off. The client’s IVA had been concluded and some months following that conclusion the former supervisor of the IVA received payments from lenders in respect of PPI claims. The client was concerned these funds could be claimed in this way despite the fact that he had been fully compliant with his IVA and had received his certificate of discharge confirming this.
legal issues
The matter was initially heard in Burnley County Court and then went before His Honour Judge Hodge QC on appeal in the High Court in Manchester. The issues that were under scrutiny were:
• the trust created by the IVA and whether that trust continued or terminated on the issuing of a certificate of completion when the debtor has complied with all his obligations under the IVA
• the purpose and effect of a certificate of completion—when this confirms to the debtor and to all creditors that the debtor has no further liability to the creditors bound by the IVA, who is the supervisor to distribute those funds to, even if he can make a claim to post-closure assets?
• the content of the final report of the supervisor when this confirms that he has ceased to act in that capacity—if he has so ceased to act, is he able to subsequently resurrect that role and give valid receipt for post-closure funds?
Why did these issues arise?
The issues in this case arose as the supervisor had been paid the funds in question without recourse to my client and then sought my client’s agreement to distribute those funds under the terms of the IVA. The client did not provide such agreement so the supervisor sought direction from the court.
What were the main legal arguments put forward?
The main legal arguments put forward on behalf of the client focused on the certificate of completion and the content of the final report. It was accepted by all that this was an all-assets IVA and that such assets were held on trust for the benefit of the IVA creditors. Our position was that such trust ceased on the issuing of the certificate of completion as the IVA specifically stated that all the debtor’s obligations would cease on the issuing of that document. The supervisor took a different view arguing that the trust continued post completion. Further arguments were advanced on the part of the debtor as to the effect of the completion certificate and the fact that this stated he had no further liability—therefore, even if the supervisor could claim the PPI funds, he could not use those funds to pay the creditors within the IVA as the debtor had no remaining liability to them.
What did the judge decide, and why?
The judge upheld the decision of Burnley County Court, finding in favour of the debtor and ordering that the proceeds of the PPI claim be paid to him. Crucial to the decision was documentation confirming the release of the supervisor from his role and cancelling the debtor’s liability to the IVA creditors.
To what extent is this judgment helpful in clarifying the law in this area?
This judgment is very helpful as it really is the first of its kind to address these issues. There has been some guidance available to insolvency practitioners previously but this decision will bring some much needed clarity.
This case is being appealed. The hearing of the appeal in the Court of Appeal was listed for 18 May 2016 but has been vacated, and a new hearing date is therefore awaited.
Last edited by Cloudy.45 on Mon May 23, 2016 4:32 pm, edited 1 time in total.
It is still in dispute as stated above and probably won't be heard until next year so until then there is nothing anyone can do about it.
Sharing from experiences of dealing with debt
The greatness of a man is not in how much wealth he acquires, but in his integrity and his ability to affect those around him positively.
Bob Marley. http://kallis3.blogs.iva.co.uk
Hi Cloudy.45
Please drop me an email (address is in my profile), with all your contact details and I will get in touch to discuss your issue further.
Look forward to speaking to you soon.
Regards,
I have exactly the same problem as you. I think the whole situation is a disgrace. The basic problem is that when people like yourself and me entered and completed our IVAs there was no such thing as PPI. Now the scandal is in full swing PPI can be considered an asset in an IVA. What insolvency practitioners are doing are trying to use obscure terms in our IVAs ( I'm guessing yours uses the same R3 standard conditions as mine ) with regard to the fact that the IPs powers continue after completion and some very obscure terms about unrealised assets, and say therefore that even though we have legal completion certificates they can still include those PPI refunds in our IVAs. Mine finished 5 years ago for goodness sake! I still fail to understand how something that didn't even exist at the time can be included but they are using the argument that tge PPI refund 'existed' at the time that it was sold to us, and therefore be included. Still nonsense in my opinion, but apparently they have been able to twist these obscure guidelines to include this.
Then the Green and Wright case came along, where 2, yes 2 highly respected legal professionals, JUDGES, have concluded that PPI refunds should go to the debtor where they have been issued with a completion certificate as this effectively legally removes all ties with debtors to creditors since there is no continuing trust. But guess what the insolvency practitioners are still fighting this and have appealed it yet again. As said the case is now not going to be heard until next year. Where this leaves us, who knows. Some are saying that the case findings currently stand so the refunds should be ours, some are saying that as it's been appealed they don't.
I think the whole thing stinks. Put aside the arguments for now that those of us with completed IVAs should just be grateful all of our debts have been wiped and we should not be perusing PPI on loans etc that were included in our IVA ( even worse for me is the loans that I've been awarded PPI on weren't even in my IVA!! ), I think we all know the real reason why these IPs are forcing this issue so much and quibbling over these obscure terms. It's not the fact that they have a duty to ensure that the creditors receive the maximum, it's the pure and simple fact that they can claim a significant portion of these refunds to line their own pockets, which I think is morally wrong. If all of went back to the creditors then fair enough but it doesn't!
I'm fighting my case, don't know where it will get me, but I only feel it's right I do as the practices that are going on are a downright disgrace. IPs are literally dragging us all back through processes that were COMPLETED LEGALLY years ago, and I think that's wrong.
Hi JB I have tried emailing you but the system is not working at present. Maybe if you get time you could email me. Best wishes. I believe the Green v Wright case is set in law as it was a legal decision and so stands in law, no IP can change this. I also believe you cannot legally do anything to a formally closed IVA it would be like telling someone they were divorced then saying years later that they were not in my mind? The whole thing is making me feel quite ill as my IVA days were terrible but we managed to get through it and it is like reliving the whole thing.
I also think that the terms in our IVAs that all these IPs are arguing over were put in place for matters such as a debtor deliberately not including certain assets in their IVAs which should have been included and then this gave them the chance to claw those assets back in after completion, which would be right in my opinion. To use those terms to try and and claw back something that wasn't even in existence at the time ( PPI ) to line their own pockets is my opinion morally wrong and just makes a mockery out of the whole IVA process!!
I will try to find out if I can email you too from the system. Not sure how to do this at the moment but will be good for us to email each other to share our experience and hopefully get a definitive and legal outcome for us both
You can't email from the forum it was disabled some years ago due to people getting a lot of spam.
The only thing you can do is ask Andy Davie if he can put the two of you in touch with each other as you're not allowed to post email addresses on here.
Sharing from experiences of dealing with debt
The greatness of a man is not in how much wealth he acquires, but in his integrity and his ability to affect those around him positively.
Bob Marley. http://kallis3.blogs.iva.co.uk
