Melanie, from reading up on this whilst waiting 13 months for my CC I notice a couple of things that have drawn my attention regarding when an IVA is actually completed.
Firstly that, the IVA guidleines stipulate that an extension can be made up to 7 days before expiry of the agreed term by informing the debtor and creditors. (This is normally 66 months) If this has not occurred it is deemed completed. ( it can be extended again for 3 more months but once again with an extension notice) If not concluded after each of these extensions, (if actually made), then the IP is obliged to issue a CC.
How are IPs getting round this, although I notice your firm has quite correctly adhered to this rule?
In addition the debtor or creditors have similar rights:
263.(3) If the debtor, any of his creditors or any other person is dissatisfied by any act, omission or decision of the supervisor, he may apply to the court; and on such an application the court may;
(a) confirm, reverse or modify any act or decision of the supervisor,
(b) give him directions, or
(c) make such other order as it thinks fit.
You have posted before that in your view an IP does not need to go through an expensive variation meeting to close a case, issue a CC and then pursue late assessed assets such as PPI.
I understand that you can not be specific to a particular case or IP and am therefore only asking this as general guidelines here.
Melanie, as the top voted IP in the review of IPs list, (and many congratulations on that) what is your view on this?
Once the expiry of the IVA term has passed, legally the IVA cannot be in existence unless the IP has the ability to extend. In my own IVAs I always build in such ability, but others may not.
If an IVA has naturally expired, due to the timescale running out, then the trust underwhich the IVA was based is not extinguished, and therefore the IP can still continue to realise assets and deal with case administration as a Trustee. I suspect that this is how a lot of firms will manage their own cases - we certainly will in my firm if it becomes necessary - but others feel that taking assignment to the rights to the claim or varying the terms of the IVA to extend timelines suits their own business models further.
Do remember that an IP cannot vary any terms of the IVA without their client's agreement.
So if I read this right the IP has the ability to extend the term but they have failed in their responsibility if they don't exercise it correctly within the terms of the agreement. i.e by making an extension before expiry. Hence they are in breach?
However they are entitled to pursue assets as a trustee, in recent cases PPi claims, but the IVA must still be considered completed and the debtor released from their obligations if they have complied. The IP is therefore obliged to issue a CC. Is that about right?
However the overiding precedent seems to be that an IP cannot simply do as they choose and vary the terms without their clients agreement. To be pedant, or of correct terminology, in law a debtor nor a creditor is actually a "client" but a subject under the supervisors (IP's)control as appointed by the court. Nevertheless it seems that the IP cannot vary the fundamental terms of the agreement, particularly time, as they wish without the approval of the court to which the IVA was applied in the first place?
This opens up a can of worms in terms of liability and tort to be discussed by me or others in the future but thank-you for your input. It is much appreciated.
I wouldn't say that the IP is in breach, merely that they may have lost their opportunity to extend the term. In which case their client ought to be provided with a completion certificate - so long as they have complied will all the terms they are required to including co-operating with regard to investigating PPI claims.
An IP cannot vary the terms of the proposal without their client's consent - unless the terms of the IVA specify otherwise - and the Court has no involvement in the variation process - IVAs being governed by contract law rather than statute largely.
I look forward to seeing more input from you in the future on this subject.
I have indeed complied with all the terms and have had confirmation from them to that effect back in March 2012. With regard to PPI I was asked if I wanted to appoint EIC at the end of July 2012 to make a claim and was assured that not only didn't I have to appoint them but I didn't have to appoint anyone. this was confirmed again in an acknowledged telephone call. I also made absolutely sure that this would not hold up the issuance of my certificate which was my prime concern both then and now. (I chased up for a form that they described as confirming that in writing). It never arrived.
On this subject I have done some research on IP's liability with regard to them breaching the agreement. It would appear that they actually then allow themselves to be personally liable as their IP protection becomes void. The conditions are something like, dishonesty, breach of the agreement or loss of office, I'm going on memory now. But of course that then also becomes civil and the limits are wide open. Have I misread this somehow?
The point that would be relevant to me and others in the same boat is that they have issued CCs to debtors seemingly arbitrarily who then had the ability to pursue PPI claims personally. However that right has been witheld from others of us because of their neglect in correctly issuing CCs within the agreed timeframe. It didn't occur to me then but it does now.
I am in correspondence with one of the customer services reps and have had some bizarre excuses, particular regarding where my file had been for 5 months from March 2012 to August 2012. I have still not had the courtesy of a reply from Karol.
I will of course keep you informed on this subject.
IPs are always personally liable - the very nature of our appointments is that they are personal to us rather than to the firms we either own or are employed by.
I do hope that Karol manages to get back to you soon.
I know Karol very well and she is the most professional and caring person - well suited for the role she currently holds. I appreciate that sometimes one person cannot make much of a difference in a larger pond, but I believe and know that she genuinely does her best to assist clients where she can. Please give her the chance in your case.
Many thanks for all the comments, funny enough my story is very similar to that of "victim12345". I wasn't informed that they were perusing ppi claims till November and was also assured that it would not hold up by completion date of the 20th December. In early Jan I called and was told processing had be a little held up due to the Christmas break. About 3 weeks ago I email, voicing my concerns that I still hadn't received any correspondents. To my complete astonishment I just received a reply denying all knowledge of a completion date of the 20th and stating that the ppi claim would hold up the completion date. Surly this can't be right?
The length of time an IVA can be kept open is something that has bothered me for some time. If my proposal states quite clearly that my IVA must not run for longer than 72 months (with 6 months 'tidying up' time included in this) and my IVA is a contract, much like any other contract, then why has a representative from my company told me that they can extend it if they need to? THEY can extend it, not WE can negotiate an extension. Given that the only reason they need to extend is because they haven't managed to complete the work needed in the given time scales (and they had 6 years to do this so it hasn't taken them by surprise!), I'm pretty aggrieved.
I've asked for further clarification, not been answered and asked again. However, as each time I ask I have to wait a further couple of weeks before I get a response (until recently when they decided to ignore my emails completely), so I've given up.
My 72 months are up in April and at this point I will get some legal advise. Unless, of course, I've received my cc by then..............
What a good thread to show an insight into the IPs side of things which are often unknown to clients, the real extent of their own pressure and liability to undertake the work they do for their clients. I hope you get a resolution asap those of you waiting for one and I echo Melanie's comments about Karol, it often feels reading posts on here that she needs more hours in the day to meet the demands on her! She will get back to you as soon as she can I am sure.
Regards, Tina Shortland, Debt Advisory Manager for Melanie Giles at Debt Advice TV.
If you’re looking for effective debt related information, articles and news, then go now to our on-line advice service at www.debtadvicetv.com
If you’re ready to ask us for specific advice or help, then get in touch at www.call-me.debtadvicetv.com so you can start to free yourself from the stress and anxiety of overwhelming debt.
There are some other threads in which IPs on this Forum have indicated that there is no need even for a variation to allow PPI claims to be considered before issuing a CC. We are all looking at the same regulations and it amazes me that the interpretations are so inconsistent.
There is also no excuse that one solitary Customer services rep from GT should be dealing with very real and important issues that affect peoples lives so significantly!
Sterling you are not yet at 72 months, but how would you feel if you had to wait at least another 13 months after April? On top of that we see debtors being given their CCs after 2 months by the same company!
There is something seriously going on here.
On a legal point, (as advised by IPs) yes they can make an extension but they are obliged to make that extension subject to the regulatory rules as outlined in the IVA guidelines and the IVA in question. If they want to do that again then similarly they have to follow the rules as outlined by the insolvency court. They cannot arbitrarily vary the arrangement at their whim and there will be huge repercussions to this behaviour.
We should also consider if the motives of the neglect to our IVAs being completed are as a result of our IPs taking on more work, BE, Tenon for example that they can not reasonably deal with.
So far Sterling you are not behind on your timeline. But I foolishly trusted that as a professional my IP would honour the agreement that we both entered into 6+ years ago! Aggrieved, mmm... what do you think?
