Do I have grounds for an appeal

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Blaggitt

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Post by Blaggitt » Thu Aug 28, 2008 11:32 pm
Hi Everyone
I have a question regarding my recent IVA rejection from just under a month ago. The main creditor rejected it on the grounds that they didn’t believe that I could sustain the payments for the full five year period, in spite of the fact that I had maintained the same amount on a debt management plan for the preceding two and a half years without missing a single payment. Now, I have received a letter from them, demanding the entire outstanding balance be settled immediately in a single lump sum.
My question is this, if they didn’t believe I could pay the IVA amount, which is less than the full outstanding balance, spread out over five years which would have been considerably easier than having to find it all at once, then why are they now asking me to pay the full amount straightaway? Doesn’t that suggest that if they think I could possibly settle the full amount immediately, then they must also believe that I actually could have paid off the IVA over five years, given that it would have been a lesser amount and over a long period? Isn’t this tangible evidence that their reason for rejecting my IVA is flawed?
After all, they could have written to me asking what I proposed to do next, or, possibly offering me a lower payment amount than the IVA over a much longer period of time, that would have been more sustainable in their opinion. But they didn’t! They demanded payment in full which is in direct contradiction to their reasons for my IVA rejection.
What do you think? Do I have grounds for some sort of appeal against their rejection?
Thanks for any help you can supply on this matter.
 
 

size5

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Post by size5 » Thu Aug 28, 2008 11:38 pm
Which creditor was it that rejected your IVA proposal?

There are lots of other questions of course, eg are you a homeowner or tenant etc etc. If you could post a little more then we may be able to help you further.

Kindest regards.
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MelanieGiles

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Post by MelanieGiles » Thu Aug 28, 2008 11:54 pm
What did your IP do when the rejection was received from this creditor? Surely these issues would have been sorted out during the adjourment period allowing for the creditor to consider changing their minds about their voting position and perhaps you improving your offer or providing further evidence about affordability.
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Blaggitt

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Post by Blaggitt » Wed Sep 03, 2008 11:16 am
Hi
Thank you for your replies. It was Egg Banking, my biggest creditor, that rejected the IVA proposal. I only wondered if their subsequent demands for payment in full, which, in my opinion, contradicts their reason for rejecting the proposal, would in itself be grounds for some sort of appeal. However, if you need to know additional details, then, I can safely assume that it's not. I am certainly better off going bankrupt anyway, I don't own any property or have any savings. I just don't like the idea of being bankrupt, that's all.
Thanks again.
 
 

size5

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Post by size5 » Wed Sep 03, 2008 11:38 am
At face value, this seems to make no sense at all, you have paid into a DMP in good faith for 2 and a half years, then looked at an IVA to limit your pain and they rejected, leading to you now giving serious thought to bankruptcy. Was your proposed payment to the IVA higher than the DMP payment?

If not, then it is very tempting to say serves them right if they get no money back at all through BR.

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ianmillington

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Post by ianmillington » Wed Sep 03, 2008 11:49 am
There are no legal grounds upon which you can challenge the decision of any creditor to reject an IVA proposal. I am assuming that Egg will have used Grant Thornton to reject the proposal. Given the circumstances you have described it is a rather odd decision. Has your IP indicated whether it was Eggs decision and GT were simply pulling the trigger or was it the decision of GT on their behalf? Did the proposal refer to the DMP?

Very odd indeed.
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Cybus

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Post by Cybus » Wed Sep 03, 2008 2:00 pm
Section 262 first sprang to mind, but that only seems to deal with challenging the meeting's decision once an arrangement has been approved.

It seems unfair that Egg have been allowed to prejudice the rights of all those other creditors and there is no provision in the Act to deal with that. In the event of the almost certain bankruptcy, all the creditors, Egg included potentially now get nothing back at all. Where is the commerciality in that? Where is the sense? I would ask your Nominee to provide you with a copy of the proxy form and supporting documentation that detailed Egg's reasons for rejection.

Something does not sound right here.

If you have made monthly payments to a debt management plan for two and a half years, then as Ian suggests, this should have been disclosed in the proposal and should have in fact demonstrated your ability to make payments and if anything should go to show your commitment to repaying your debts. If it was disclosed to the IP and the Debt Management plan was not mentioned in the proposal or nominees report, then you have to ask the question 'Why?'

Dig out a copy of your proposal and the Nominee's Report and see if the Debt Management Plan was mentioned in there. If you disclosed it to the IP and it was subsequently not mentioned in either of those documents, then there's no other way to phrase this, but you used an incompetent IP.

When you know precisely why Egg rejected, then come back and tell us. It may well be that all is not lost and you could make a second application for an IVA.
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MelanieGiles

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Post by MelanieGiles » Wed Sep 03, 2008 2:11 pm
Egg generally take control back from GT if the debt is higher than £25k - and of late I have seen this lead to a string of queries regarding the debtor's background and in depth questioning about various aspects of the proposal - including the supervisor's view of whether the arrangement can be sustained.

In the industry, I suppose that we have become far too used to people that we know voting - that is is unusual to see a creditor taking such time to analyse the facts presented, but at the end of the day it is their decision and if they would prefer to get zero in a bankrutpcy, I imagine they can justify that decision to their own shareholders!
Regards, Melanie Giles, Insolvency Practitioner
 
 

ianmillington

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Post by ianmillington » Wed Sep 03, 2008 3:01 pm
Yes Melanie, perhaps we as a profession have become rather comfortable with the policies of the various voting agencies, aligning the proposals we draft with what those agencies expect.

Whenever a creditor votes independently, there is always scope for the IP to be caught on the hop. For example is there something in the debt history that has hardened the attitude of the creditor to the debtor? Or is it simply that Egg, having seen the poster maintain a DMP for two and a half years would prefer the DMP to continue, particularly if the IVA shows the same contributions. I suspect that is the true position.
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size5

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Post by size5 » Wed Sep 03, 2008 3:36 pm
Ian,

What's confusing here, and apologies if I have missed anything, is that they rejected on the grounds that they didn't believe he or she could maintain for the full 5 years, which if the contribution WAS the same as the DMP payment is a little nonsensical if there is a history of payment for 2 and a half years? I suppose it is possible that the poster had, upon review of the DMP, increased the original payment by a significant amount, which may possibly account for their reluctance.

I also wonder whether the IVA was tried due to the DMP failing? The protocol suggests that a debtor should be encouraged to try informal arrangements where possible, which he has patently done. If it wasn't failing and the debt could be cleared in a reasonable time then that may also shed some light, but is it not a little strange that they issue a sudden demand for payment in full after all this time as, assumedly, the DMP was still running whilst the IVA was being proposed? I know that they can pretty much do what they like re demands and letters on a DMP, but very strange nonetheless. Apologies if I have that wrong of course, assumptions are a dangerous bedfellow.

Regards.
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ianmillington

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Post by ianmillington » Wed Sep 03, 2008 4:10 pm
I think the fundamental issue here is that the poster has successfully run a DMP for 2.5 years, without issue, and then enters into an IVA with the same payment scheme but with the following changes:

The scheme now ends after 5 years as opposed to a (presumably) later date
Fees have increased
Egg now have to write off debt whereas the ability to service the payments remains unchanged

So my guess is that they are grumbling about the IVA being now offered as a solution whereas (in Egg's view at least) there was nothing wrong with the earlier solution. Viewed from the flip side you could ask why is an IVA is the appropriate solution now whereas it was not 2.5 years ago, given that payments are identical? I'd be very interested to know what the IPs rationale was for the change in strategy.

Ian
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MelanieGiles

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Post by MelanieGiles » Wed Sep 03, 2008 10:39 pm
You have to put yourselves in Egg's position here. They are getting regular payments from the DMP provider, but all of a sudden the debtor wants to reduce the repayment period anf there will be a big whole in the payments whilst the nominee is paid. Makes me think that an enrirely different reason could have been given to the IP - or perhaps I am just too cynical.
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Blaggitt

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Post by Blaggitt » Wed Sep 03, 2008 10:41 pm
Hi Everyone
Thank you for the continued and increasing interest in my case and, in view of that, I feel I should elaborate on the details of it. I suppose my circumstances are a little unusual and, by the end, you will all advise me to go bankrupt anyway and you’re probably right!
I live with my parents and Uncle who are all pensioners and are in no way connected to my debts. I really don’t know the exact details of their incomes and they probably wouldn’t tell me even if I asked them, they are a bit old fashioned about that sort of thing.
Now, to the history of how my debts occurred and got out of hand. Ever since I started work, at age seventeen, I was bombarded by the credit industry to have credit cards and loans and still am today, surprisingly enough. I accepted the offer of certain credit cards and stayed in control of the situation in the early years, but, at the age of 24, I became self-employed with the video business that I still run today, which involves filming live stage events such as dance shows, school plays and fringe theatre and selling the copies to the performers or their families. From time to time I would have to use credit to pay unexpected bills or, sometimes, to finance the travelling that doing video jobs all over the country entailed. Over the years, the debts mounted up on a variety of cards, but I managed to keep on top of the payments, just! I was still being offered higher credit on a regular basis. My credit card limits would be increased without me asking, I would be offered loans, with no questions asked, just tick the “yes” box, supply my bank details and the money would appear in my account. I had a loan for £3000 that way, which I paid back in the allotted time, and, was subsequently offered a loan for £4000 which I also accepted and paid off. Then, in 2003, my existing super VHS video equipment was worn out. I had resisted attempting to upgrade to the new digital format because I couldn’t afford it, so I continued to use the old kit for as long as I could, but two camcorders developed faults almost simultaneously and I could no longer do jobs without renting camcorders, which, obviously, put a severe dent in my already strained profit margins. Out of the blue, I received a phone call one day from Egg, with whom I already had a credit card, asking me if I would like a loan for £15000. Well, actually, yes I would, it was perfect timing, I used the money to buy the new digital camcorders and computers for editing and any money left over I used to pay off some of the other credit cards.
The problem is, however, that editing on computer, which is the accepted professional way to do it, is much more time consuming than my old method with the super VHS equipment had been. Add to that, the problem that has always existed with this business which is that it tends to be seasonal, with many shows being performed towards the end of a school term, which creates a lot of shows to edit, one at a time, forming a bottleneck effect and I found that because of the long delays caused by the editing process, a lot of customers were tired of waiting and lost interest in buying copies of the shows that I had filmed. As my income dropped, I struggled to keep up with the credit payments. I started incurring late payment charges, £20, and if that put me over the credit limit then I would get hit with over the limit charges, £20, too. The debts spiralled out of control and eventually a stage was reached where it was impossible to ever catch up. The credit industry had fallen over themselves to get me into debt and then. when I was down and struggling, they tried to milk me for every penny they could get with charges that are extortionate and out of proportion. I never used the loans and credit cards to pay for a good time or buy myself luxuries and the debts had built up, in total, over a period of nearly 30 years and, by this time, were about £30,000.
Finally, I turned to First Debt Rescue, now called Moneysolve, to intervene on my behalf. The person I spoke to on the phone was clearly a “salesman” who assured me I would get an IVA based on the monthly sum that I could afford which was £225. However, he said I needed to build up a record of regular payments first for about six months to verify my reliability. So in April of 2006, this payment plan was implemented and the letters and phonecalls from the creditors ceased. After the six months were up, I contacted the same person at Moneysolve and asked about the IVA but was told that £225 a month was not quite enough to secure an IVA and to carry on until such time as I could afford to increase the payment amount. With no real alternative, except bankruptcy, I did so.
Then, after two years of unmissed payments, I get a phonecall from Moneysolve, suggesting I go for an IVA! Hang on, I thought I wasn’t paying enough to get one and I couldn’t afford to pay any extra. Oh no, apparently, £225 per month is enough after all. Well, okay then, I would be paying the same amount for five more years and then that would be an end to it. Great!
I continue paying the £225 a month but it now goes towards the administration costs for setting up the IVA. I know that is standard practice but I only found that out when the creditors started contacting me wanting to know why they were no longer receiving any payments. There were forms to complete, details to send and I had to get my business accounts up to date and submitted to them.
At this point, I should explain a few personal circumstances. I had run the video business for 22 years, it’s what I know how to do and I am damn good at it. It’s like running a little movie factory where I do everything myself, filming the shows, multi-camera editing, running off the copies, designing and printing the covers, delivery, the lot! Most of these productions are feature film length and in order to watch everything I have produced over the years would take about one calendar month, of 24 hour days, watching one after another, non-stop. That’s a pretty prolific output for one person, believe me! It requires an inordinate amount of patience and consumed most of my time. Consequently, I became used to living simply, with little spare time or money to do much else.
I also have a condition called Obsessive Compulsive Disorder (OCD) which involves complex, time-consuming ritualised behaviour. I have had it since I was 11, but didn’t realise exactly what it was until it was diagnosed in 2003. I was given medication, which helped reduce the effects of it, but found it made me sluggish and apathetic which didn’t help the business troubles and I eventually came off it myself about 18 months ago. The OCD has increased back up again but not as bad as it used to be.
I still lived with my parents and never having been particularly sociable or outgoing I didn’t really require much to live on anyway. I liked the comparative freedom of my self-employment and despite my financial limitations I enjoyed my inexpensive hobbies, cycling, running, tennis and associating with a few close friends. My parents and Uncle are all in their eighties and, as none of them drive, need me for transport and helping out with other chores. Hence, they allow me to live rent free and as they particularly don’t like the idea of me going bankrupt, had let me go without paying
my share of the household bills in order for me to afford to maintain the monthly payment plan and would have continued to do so if I had secured the IVA.
I know this is a weird set of circumstances and an unusual lifestyle which has it’s advantages and disadvantages. It all depends what you value the most, in my case, it’s personal freedom, compounded by a need to be self-employed due to the OCD making it impossible to do a normal job and the need to be there to help my parents.
Back to the IVA proposal, my case was handled by Beesleys Nominee Services, which is still the same firm as Moneysolve. The lady handling my case advised me to go bankrupt! It was good advice but two and a half years late. I could have gone bankrupt in the first place and saved over £6000 paid out on the DMP building up my record of reliability. I asked if she thought I would land the IVA, bearing in mind, my profit for 2007 was only £3825, but my expenses incredibly low. She was sure that the creditors, faced with the fact that since I had no property, savings or investments, would receive next to nothing if I went bankrupt, would accept it gladly.
So what to do? Pay £225 for 60 months, totalling £13500, but avoid bankruptcy which neither my parents or myself wanted and justify the £6000 already spent, or go bankrupt with nothing much to lose and save £13500. I chose to proceed with the IVA and then Egg Banking turned it down on the grounds that they didn’t believe that “voluntary contributions for five years were sustainable given the financial support you receive from your family”. I still can’t decide who is the craziest, me, for even considering an IVA when I have nothing to lose by going bankrupt, or, them, for saying no! They had nothing to gain by rejecting it and nothing to lose by giving it a try. Then, within weeks, they are demanding the full amount in a lump sum and I’m the one who’s mentally ill? Beesleys assure me that they presented all the facts of my case in full, but the woman handling the case on behalf of Egg and her immediate superior both rejected it.
Well, there you have it. I apologise for the alarming length of this post. I knew it would turn into a brief autobiography which was why I tried to keep my original post simple. At least I left out the funny bits, a close friend, who is a filmmaker, states that my life is gold dust to a comedy writer. Bet you’re all sorry you asked for further details now, aren’t you? It’s my obsessive compulsive nature to blather on.
 
 

size5

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Post by size5 » Wed Sep 03, 2008 10:47 pm
I am flabbergasted by this thread, I really am, and in more ways than one. Whatever happens, and I sorry for your experience, I sincerely wish you the best for the future in whatever you do.

Regards.
Last edited by size5 on Wed Sep 03, 2008 10:47 pm, edited 1 time in total.
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MelanieGiles

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Post by MelanieGiles » Wed Sep 03, 2008 10:50 pm
There is nothing strange of startling about your personal background, indeed your history reads the same as a number of self-employed clients I am acting for - who work hard to make their businesses work but fall into the credit trap - in your case literally offered on a plate at a time when you most needed the support.

It would be improper for me, as a professional in this industry, to comment upon the guidance you have received from another company - suffice to say that once your creditors have gotten used to receiving regular ongoing payments, there is unlikely to be any incentive for them to disturb that relationship - and the threat of "accept it or I will go bankrupt" rarely has any impact these days.

As you have already worked out that bankruptcy is probably a better options for you, then the sooner it is done and you put all of this behind you I would have thought would be the better.
Regards, Melanie Giles, Insolvency Practitioner
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