Faz, they do use some of the same clauses in the protocol, but don't stick rigidly to the protocol template (which is fair enough as some people's circumstances do not fit in with the "one size fits all" templates).
If the proposal varies in any way, then it shouldn't be considered "Protocol Compliant", but is still "Protocol based".
If a clause in the proposal accords with the Protocol then it will be adhered to as if the case was PC --- in any event, however a clause is drafted, the clause must be followed as written and agreed.
My opinions are merely that .. opinions based on experience. Always seek professional advice.
IVA Completed 23rd July 2013 .... C.C. 10th January 2014
Thank you for all the advise guys, but going back to my original question, am i right in thinking that i should not have to extend by a further year as i have less than 5k equity @85% ltv,
That is writen on my proposal , all the different types of equity release are very confusing, why dont they just one standard protocol across. The board?
Do agree with you about equity being glossed over, when we applied for our IVA we were told about equity release but told "do not need to worry about that at this stage, we will help when the time comes", it is set out in our proposal but when you are at the stage where you have nowhere else to turn we do tend to only hear what we want. Will be interesting to see what MccD says
Exactly what Welshwiz has stated.
I can see many arguements brewing over this come month 48/54 depending on your IVA.
As far as im concerened, I had below 5k and was over the 85% LTV at the start and will be at the completion. therefore there was NEVER any equity to release. I bet DFD try and push for a 12 month extension!
Right guys an update, received a letter from MccD today basically saying that I had to extend my term by 12months, and to contact then to confirm receipt.
Rang up and spoke to someone who again said the equity was over £20000, so as I am unable to re-mortgage I have to extend, I did not agree to this, was told they only use 85% ltv on a re-mortgage if accepted, because its decline they use total house valuation,
I read through my proposal word for word stating that its says 85%. I was told to complain to my IP who would look to it.
About 20 Minutes later I had a call from MccD to say that she looked through my paper work and I do have a protocol compliant iva @ the 85% ltv in my agreement, "the first I have seen" she said.
So thank you guys for all you help and advice, finally I will not have to extend for an other 12 months.
Just goes to say how many other have been told they have to extend when they don't.
I would like to apologise for the confusion but this arises from the protocol wording and modification. It states that the remortgage will be to a maximum of 85% loan to value but it also states that if the equity 'available in the property' is less than £5,000 it need not be released. Does this mean equity from a remortgage at 85% loan to value or the total overall equity within the property?
It is ambiguous but we have taken the view that the intention of the modification is the former interpretation and have thus agreed not to extend. Other IP firms may take a different view and hopefully there will be consensus throughout the industry.
Has the wording been clarified in the 2014 Protocol, Michael ?
English law often relies upon clumsily drafted terms and it is widely accepted that we have "The LETTER of the Law" and "The SPIRIT of the Law" and it is down to the judiciary to interpret the Spirit and to enshrine that in Precedent.
Unfortunately not many individuals in an IVA get the opportunity to get precedent set by bring such things before the courts. But I am glad to see that McCambridge Duffy appear to have taken what, in my view, was the Spirit of that clause.
My opinions are merely that .. opinions based on experience. Always seek professional advice.
IVA Completed 23rd July 2013 .... C.C. 10th January 2014
Although the wording might be flawed, if the £5,000 ruling were to be applied to the full equity, the property would have to be valued at around £35,000 - and there aren't too many cases like this around!
My firm operates the same policy as Michaels - and I genuinely believe this to be correct.
