In the first instance you need to speak to your IP to advise them of any difficulties and if there are any changes which have occurred and make your continuing with the IVA impossible.
Your IP will have to issue you with a certificate to proove your IVA has 'failed' to enable you to file for bankruptcy
Hope this helps
Melanie Nicholas 28 years insolvency experience - 23 of which in the Insolvency Service - Insolvency Manager Jones Giles email me at melanienicholas@jonesgiles.co.uk
Speak to your IP but I think that you have to miss 3 payments in order for an IVA to fail. Once you have the certificate to show that the IVA has failed there won't be any problem declaring BR.
Thanks for your quick reply. I have contacted the IVA IP and She has stated that I do not need to have failed the IVA. I have made an appointment with Plymouth City Courts on the 21st May and the Lady I spoke to said that the IVA would have to be failed to procede with BR. This obviously contradicts the IP as She states that a number of her customers have BR whilst still having and IVA!!!! That is why I have asked the question from an expert such as yourself.....Help I would like to resolve the situation as I have had to wait so long to get an appointment.
Well, ahhem, not to say that your IP is incorrect (but she is) I have known of people who have made the decison to give up on their IVA and gone to file for banktuptcy only to have the District Judge request a copy of the certificate declaring the IVA 'failed' and the clients refused bankruptcy as they did not have it !!!
You must obtain a copy of the certificate or you would find yourself in the same situation the District Judge will not agree to make a bankruptcy order unless you have a copy of the certificate with you
May i suggest you speak again to your iP and politley remind her of her obligation to 'fail' the IVA
Melanie Nicholas 28 years insolvency experience - 23 of which in the Insolvency Service - Insolvency Manager Jones Giles email me at melanienicholas@jonesgiles.co.uk
Thanks for clearing that up as I would not be happy turning up to court only to find it being refused.I really thought up until fairly recently that I would return to work but my employer has informed me that due to my illness that I would not return to my Company under any post so they are retiring me early due to ill health. Previous to my Company telling me this The IP suggested we extend the period of the IVA to give me time to return to work. I have informed them and been up front with the whole situation but they say that until the 3rd month defaulted payment which is in June then they cannot fail the IVA. I have told them that my illness is long term and there is no chance of being able to pay and would they fail the IVA and still they say I have to wait until June. Can I request they fail or can they decide despite my plea to fail?
just to confirm that the court clerk at Plymouth WILL NOT process the br application unless accompanied by the failure certificate from the IVA company.
Thanks for the advice everyone. I will get back with the outcome.
Just one other question, when my Company pay me for the early retirement due to ill health, will any payment to me such as lump sum pension be taken into account towards the creditors owed?
That will be classed as a windfall so depending upon how much it is will depend if you loose it.
If the amount is sufficiently high you may be able to propose a different solution - perhaps a final settlement offer for the IVA based on the fact that you have stopped working.
Can I declare BR when I have an IVA
Posted - 29 April 2009 : 12:24:26
