Re: Summer 2015 | Page 78

Recent Court decisions about legality An Individual Voluntary Arrangement (“IVA”) is a legally binding agreement between someone in debt and the people they owe money to and is supervised by an insolvency practitioner. The IVA typically lasts for five years during which time the person in debt will pay a monthly contribution into the IVA and agree to sell certain assets at a specified time and pay the proceeds into the IVA, typically the matrimonial home, for the benefit of the creditors. In order to enter into an IVA the debtor needs 75% of creditors (in value) to approve it. meeting the proposal has not been agreed to, it is deemed rejected (Rule 5.24(5)). In this case the original meeting was adjourned and reconvened at 11.30am 14 days thereafter. At 2.45pm the meeting was suspended to allow for discussions to take place regarding modifications. At 8pm the meeting was reconvened and the IVA purportedly approved. A recent decision in a case ‘Re Mark Irwin Forstater [2015] BPIR 21’ confirmed the position that a meeting of creditors to consider the person in debt’s proposal may only be adjourned for a maximum period of 14 days (Insolvency Rule 5.24(3)) and that the chairman of the meeting may, without an adjournment, declare the meeting suspended for any period up to one hour (Rule 5.24(4A)). Further if after an adjournment of the An objection was raised by a person who had lent money who had petitioned for the debtor’s bankruptcy which led to the IVA being proposed. At the hearing of the adjourned petition the court found that a Bankruptcy Order could be made as the rules were clear. The maximum period the adjourned meeting could be suspended was one hour, if the IVA was not approved within that hour the proposal was deemed to be rejected. If the person owing money fails to comply with the terms of the IVA they will be in breach and if that breach is not or cannot be remedied the IVA will fail, usually there will be a provision that if the IVA fails the person in debt will be made bankrupt. 76 The moral to the story is to ensure that creditors are engaged during any period where there has been an adjournment as the insolvency rules will be applied to their letter. In another case yet to be reported, the High Court in Manchester had to look at whether the trust created by an IVA continued after the supervisor issued a Certificate of Completion where the individual in debt has complied with their obligations. In this case the supervisor received payments relating to mis-sold PPI and applied to the court for directions as to how these funds should be paid out. The supervisor argued that the trusts created by the IVA carried on and that the money was held on trust for the lenders. The debtor argued that the trusts had ceased, that the terms of the IVA had been complied with and that he no longer had a liability to the IVA creditors. The Certificate of Completion confirmed within it that there was no further liability to the creditors in the IVA and the final report confirmed that he had ceased to act as supervisor. The court found that the PPI payments were due to the debtor, the court took into account a number of factors including that the closing documents (the Certificate of Completion and the final report) confirmed the release of the supervisor and brought to an end the debtor’s liability to the IVA creditors. This case shows the importance for insolvency practitioners, creditors and those entering into an IVA to be clear as to how the terms of the IVA will operate in practice. By Darren Stone