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Ashen Light
Junior Member
179 Posts |
 Posted - 10 July 2008 : 14:57:16
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Hi, Im new to the forum, first post.
Can anyone clarify excactly the procedure for someone wishing to petition for bankruptcy from an IVA as there does seem to be some conflicting information around at the moment.
This is what I understand the current situation to be (if the IVA provider would not be providing the funds for bankruptcy).
In many courts the District Judge, on being presented with the bankruptcy petition (which would include details of the IVA on form 6.27) will grant the order in the normal way on the day.
However I understand the correct procedure under 6.42(A) of the insolvency rules 1986 is that the court must inform the IVA provider giving them 14 days notice prior to granting the order. The hearing would be re-listed, with the court writing to the IVA provider informing them of the new time and date. The petitioner would then just need to attend the new hearing for the bankruptcy order to be granted. If the IVA provider attended or not it would make no difference as there is nothing he or she could do to stop the bankruptcy order being granted.
Appreciate any answers / views.
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Ian Richards
Junior Member
United Kingdom
296 Posts |
Posted - 10 July 2008 : 16:16:22
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Hi Ashen and welcome to the forum.
In a nutshell, you are totally correct however i only know of one court that follows the rule book on this as most courts don’t! It may well be worth checking your county court and asking them, however the chances are quite minimal! One thing you will need though is a certificate of failure from your IP as without this they will probably get turned away at the court. I don’t know how far you have gone in ending your IVA but in general it takes about 3/4 months for it to fail. Have you told your IP what you are doing?
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Ian Richards
Junior Member
United Kingdom
296 Posts |
Posted - 10 July 2008 : 16:25:30
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Hello again
I have just re read your post.
Just to clarify my understanding of this, some judges go strictly by the book and will demand an ok from your IP that they (the IP) has been given 14 days notice of you BR. In other words, you are supposed to contact your IP and ask them to clarify that they have no objections and have been given 14 days notice. Confirmation of this needs to be sent to you or the court that you are going BR in. Im sure a lady IP on here named Melanie will confirm this in its proper legal tongue though!
Ian
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Edited by - Ian Richards on 10 July 2008 16:27:57 |
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John
New Member
United Kingdom
73 Posts |
Posted - 10 July 2008 : 16:31:53
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Hi Ashen
the point of clause 6.42(A) is to notify the IP supervising your IVA of your intention.The IP may then, issue the Certificate of Termination and post to you or the court before the revised hearing date. Of course your debtor's petition will then be accepted.
If the IP does not issue the Certificate and does not appear at the hearing then once again the petition will be accepted.
So in this respect it is not absolutely required that you are in possession of the Certificate.
However, if the IP does not agree that you are insolvent they may choose to appear to give their view in court. (Most unusual and not likely).
Hope this helps |
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Ashen Light
Junior Member
179 Posts |
Posted - 10 July 2008 : 18:18:32
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Hi Assist & Loads, Thank you both for your replies.
Loads, sorry for any misunderstanding, I am not in the IVA, just asking for any clarification or experiences in general on behalf of people I know.
I am in the process of contacting a couple of local courts for their official procedures, to date though Ive been told verbally that its just present the petition and the order will be granted in the normal way.
It does seem to be a greyish area in parts at the moment with stories of District Judges having different ways, which is not really helpful. I would say that there should be a standard procedure set out which would then avoid any possible unecessary stress or wasted days / time at court etc.
Possibly up date you if I get detailed clarification from the courts.
Anyway thank you both for your time
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melanie_giles
Senior Member
1191 Posts |
Posted - 10 July 2008 : 21:24:54
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I've only recently begun to encounter the issue of Judges refusing to grant bankruptcy orders without a letter from the IP confirming the IVA has failed. I've not yet seen this refused in practice, but there have been a few cases reported on this forum, so it probably better to have the IP letter just to be on the safe side.
For an informal chat about any financial difficulties, or advice as to the options available, I can be contacted via my website - www.melaniegiles.com |
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Reviva UK
Advanced Member
United Kingdom
2452 Posts |
Posted - 10 July 2008 : 21:50:41
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Hi
The procedure does differ on each court and it is important to speak to the Br Clerk to confirm the court procedure in each area.
The High court in London always ask for a certificate of termination which can take 5 months from he first missed payment.
Some IVA firms pursue the debtor to the letter of the law and almost become creditors with phone calls & letters etc.
In other courts the Judge has been more than happy to accept verbal confirmation from me that I have spoken to the IVA company ( having given appropriate reasons for the IVA failing - i.e. significant change of circumstance ) and that they have been informed verbally or in writing of the position.
I think that many judges are getting cheesed off about the companies trying to forcefully knock out IVA's for business reasons rather than for appropriate reasons.
Paul Johns
Assisted Bankruptcy Specialists
Reviva UK
www.revivauk.com |
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Reviva UK
Advanced Member
United Kingdom
2452 Posts |
Posted - 10 July 2008 : 21:51:26
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Hi Ian
hope you are well
give me a call if you would like to catch up
Paul Johns
Assisted Bankruptcy Specialists
Reviva UK
www.revivauk.com |
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JulianDonnelly
Junior Member
United Kingdom
325 Posts |
Posted - 11 July 2008 : 11:13:52
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Hi all,
In my experience, it seems to be standard practice these days with most courts to get a certificate/letter of termination. However, as Paul says, speak to your local court and see what their requirements are just to be sure.
Regards
Julian Donnelly
Spokesperson for www.Bankruptcyhelp.org.uk |
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Ian Richards
Junior Member
United Kingdom
296 Posts |
Posted - 11 July 2008 : 17:08:07
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Hi
I think that there might be a misunderstanding here about a 14 day notice of Bankruptcy to the IP of the client and a Certificate of Termination!
Firstly, most courts as far as i am concerned do require a Certificate of Termination before they will allow the petition to be put forward to the judge.
Because of this I will always make sure that this is on hand with the petition when i go to court with my clients.
Secondly, as it still CURRENTLY stands within the UK the judge CAN STILL turn away a petition if there is not a letter from the debtors IP stating that they have been contacted and given 14 days notice of the debtor’s petition for Bankruptcy, they also have to state that they do not have an objection to the Bankruptcy taking place!
I know this to be fact as one of my local courts are really strict with it, and if you have NOT got a confirmation letter with you from the IP stating there isn’t any objections to the petition it will not be allowed!
So in a nutshell, the 14 day notice letter from the IP and a Certificate of Termination from the IP are two different entities!
However I must stress that I only know of one court that still adheres to this, but there may be others.
I hope all of that makes sense.
Ian |
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Ian Richards
Junior Member
United Kingdom
296 Posts |
Posted - 11 July 2008 : 17:12:14
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Hi Paul
I'm well thanks, hope you are too.
Yes mate we must catch up, ive lost your number so give me a ring, otherwise i'll try you through your website.
Ian
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Ashen Light
Junior Member
179 Posts |
Posted - 12 July 2008 : 00:33:41
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Hi all, thanks for all the input.
To be honest after reading all the replies I can now see why I asked the questions in the first place as there does not seem to be a conclusive answer.
Like I have said I have spoken with a couple of local courts and have been informed by the clerks at both that the people involved just need to book a hearing and then just turn up with their petitions (no need for any certificate of failure or letter from their IPs). I can also confirm that both these courts have made bankruptcy orders in this way before concerning IVAs.
One of the problems I can envisage with the above, is that on the day (or any day for anybody in this position at any court even) it may not be a regular judge, and that he / she may have a different procedure as used at another court.
As I have said I believe there should really be a standard procedure set out in black and white so there can be no confusion for anyone concerned, I would think this must be possible given that this is a legal issue where a judge decides. I thought that possibly the 6.42 (A) rules clinched it but it does not look to be the case after reading the replies here.
Will be speaking to the courts again next week regarding further clarification.
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Ashen Light
Junior Member
179 Posts |
Posted - 19 July 2008 : 13:52:12
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Hi,
Just to update.
I have spoken to a number of courts again and have basically been given the same mixture of advice as on here.
It would appear there is no universal procedure and it would depend on the court and possibly which judge you see on the day.
Seems like the best thing anyone in this situation can do at the moment, is contact their local court and ask before presenting their petition.
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Edited by - Ashen Light on 19 July 2008 13:59:51 |
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Topic |
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IVA To Bankruptcy, Correct Procedure?
