Is there any way to prove 50/50 clause applies ?

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tony417
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by tony417 » Fri Mar 10, 2017 4:36 am
Hi
Looking for any get out clause. Just entered an Iva, and it is only for 3 years so using (R3) as my IP put it rather than standard IVA protocols.
I am due a bonus but told that due to not using standard protocol and being over 5 years the 50/50 bonus clause does not count and as such the bonus would be a windfall and the whole net amount is due to the IVA, is this the case or is there any way to prove to creditors as there is nothing specific in the contract that I can keep 50%.
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Foggy
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by Foggy » Fri Mar 10, 2017 7:47 am
R3 standard terms also use the 10% 50/50 clause for overtime and bonus payments, but, as could be the case here, clauses can be written out. You are bound by the terms in the proposal you signed, whatever they use, be it R3, Protocol or just a free draft.

McCambidgeDuffy use £ as a matter of course, so hopefully Michael will pick up on this later and comment.
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Michael Peoples
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by Michael Peoples » Fri Mar 10, 2017 9:16 am
You need to read the proposal and the Chairman's Report as this is not really anything to do with the R3 standard terms and conditions. Each proposal should have a section dealing with overtime, bonuses and commission and if it is not in the proposal then creditors will usually insert something at the meeting. I would find it very strange if a proposal did not address this issue but I do not know what your proposal says. I am assuming that as a three year arrangement you are repaying in full so perhaps any bonuses shorten the term but I am guessing. You need to read everything through.
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tonic6473
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by tonic6473 » Sat Mar 11, 2017 7:58 am
Hi
No clause was put in regarding the bonuses, etc the only thing in the proposal is about windfall, which I did not think applied to bonuses
I was lucky that the 3 year was passed at creditors meeting as only one person voted and only repaying approx 15p in the £ back
Is there still a way of only having to give up only 50 % as there is no specific clause and stating to creditors that is standard terms
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tonic6473
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by tonic6473 » Sat Mar 11, 2017 7:59 am
Hialso what is the difference with r3 to standard terms
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Foggy
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by Foggy » Sat Mar 11, 2017 9:18 am
The main frameworks are pretty similar, the differences are in the minute detail. I gather, though I am no expert, that R3 is less open to deviant interpretation. However, I would not recommend choosing a provider based on the terms and conditions used alone. An unhelpful IP who is impossible to reach is just as damaging whichever they use.
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Michael Peoples
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by Michael Peoples » Mon Mar 13, 2017 9:04 am
You need to see how the proposal deals with overtime, bonuses, commissions etc as this has more bearing than the T&Cs. There should be a reference to this and if your nIP is demanding all the money ask for where it says so in the proposal. It is possible that overtime etc was not addressed within the proposal but very unusual if so.
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tonic6473
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by tonic6473 » Mon Mar 13, 2017 9:39 pm
Nothing specific has been put in at all regarding. BOnus, overtime, etc
Had questioned while proposal being put together asking about this specific clause, but advised by IP nothing written in to proposal and to wait and see if asked to be added at the creditors meeting
Only thing it states in proposal under after acquired assets is any after acquired asset shall be advised to IP within 21 days to include a windfall, inheritance or lottery win over £100
Other than the that under contributions it states I will make 36 payments of £350
It not state anywhere about any additional payments from bonus or overtime
This is my 2nd IVA but this has come about due to different reasons to the first and the 50% was specifically put in as a point under the contributions heading in the first IVA proposals
As nothing is specifically mentioned does this mean that either I do not have to pay anything over at all or would it just default to the standard 50/50 clause as stated in the standard terms
Just trying to see a way of keeping some of bonus happy to pay over 50% as thought that is what would have to do anyway
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Foggy
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by Foggy » Tue Mar 14, 2017 7:52 am
Does it refer to the Standard Terms anywhere in your IVA proposal or creditors report? If so then those might apply by default where not overwritten by an alternate clause. If not, then I would argue that the overtime and bonus payments are yours as they have not otherwise been addressed.
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Michael Peoples
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by Michael Peoples » Tue Mar 14, 2017 9:16 am
Your IVA operates under the R3 standard terms and conditions which are 'all asset' terms. Therefore anything not specifically excluded is included so your IP could be right in what they say but it is still a bit lax not to have addressed this within the proposal especially when you raised the query in advance. Given that only one creditor voted first time round perhaps you should try a variation to insert the 10% 50/50 rule into the proposal. Creditors could reject this but the proposal would just remain as it was so nothing to lose.
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Foggy
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by Foggy » Tue Mar 14, 2017 11:13 am
Michael Peoples wrote:
Your IVA operates under the R3 standard terms and conditions which are 'all asset' terms. Therefore anything not specifically excluded is included so your IP could be right in what they say but it is still a bit lax not to have addressed this within the proposal especially when you raised the query in advance. Given that only one creditor voted first time round perhaps you should try a variation to insert the 10% 50/50 rule into the proposal. Creditors could reject this but the proposal would just remain as it was so nothing to lose.


Michael, surely the R3 ( or, indeed, any) standard terms and conditions would only apply if referred to in the agreement as the applicable under-riding terms.
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Michael Peoples
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by Michael Peoples » Tue Mar 14, 2017 11:52 am
True Foggy and our proposals state that. However there are things in Protocol such as the 10% 50/50 rule and the equity release which we incorporate as they are not addressed within the R3 T&Cs. The IP is saying that the proposal is covered by the R3 T&Cs which do not address how overtime etc is dealt with. There is a section on 'after acquired assets' which could be argued covers this but normally these issues are addressed in the proposal or modified by creditors. In this instance it looks like neither was done so it is unclear. Perhaps the debtor needs to get legal advice but this is not cheap.
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tonic6473
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by tonic6473 » Tue Mar 14, 2017 2:12 pm
From what I could see the after acquired assets mainly talked about property and overtime, bonuses are not mentioned I suspect if I do not get the answer I want I will request a variation meeting especially as it was something that I specifically asked about and have a chance each year of getting a bonus and do not want to lose out completely
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tonic6473
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by tonic6473 » Tue Mar 14, 2017 7:56 pm
Do I have a good case to request a variation meeting seeing that I had previously asked for the bonus stipulation to be considered and does the IP have to agree for this to happen if I request it
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tonic6473
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by tonic6473 » Tue Mar 14, 2017 8:03 pm
Also would a variation meeting be called just to add this clause, when the original proposal is open to interpretation anyway that it could be read either way I have asked my IP that if on income and expenditure report we state that 50% of bonus was paid across and no creditor queries it that this would be sufficient
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