IVA or Bankruptcy ?
This is one of the most important questions facing people with serious debt problem, and to be honest, it can be an extremely difficult question to answer.
In my position as a debt adviser, specialising in IVAs, I believe helping a person understand how their personal circumstances will effect the suitability of each solution, either an IVA or Bankruptcy, remains crucial to helping someone decide on how best they can move forward.
So, here are the facts, in plain English, which you need to know before you can decide which option, be it an IVA or Bankruptcy, is most suitable for your circumstances.
The Personal Bankruptcy Option.
What is bankruptcy ?
Well, being bankrupt is: "when a person is declared in law to be unable to pay outstanding debts".
(It is also known as being insolvent.)
What you can expect to happen
After the court has issued a bankruptcy order against you, you will be interviewed by the Official Receiver. If you have any assets, you may also be interviewed by a Trustee in Bankruptcy and your assets will then be sold by the Trustee in Bankruptcy. The money from the sale of your assets will be used to settle your outstanding debts, however, all the costs and fees of the bankruptcy process will be paid out of these funds before the creditors receive any settlement, or dividend payments. If you can afford to make monthly payments to the Official Receiver from your income, you will be expected to make these payments for three years. If the Official Receiver thinks you can afford to make payments, and you refuse to agree, he can obtain a court order to make you do so. The Official Receiver can also make your employer deduct the payments from your salary. The Official Receiver has considerable power, and your failure to cooperate could result in a warrant for your arrest, or public examination in front of a judge. The Official Receiver has the power to reverse any sale of assets where they are deemed to have been sold for less that their true value, and if it is believed the transaction defrauded creditors, there is no time limit as to how far back in time the Official Receiver can go.
What assets will be sold in Bankruptcy ?
Any equitable interest with a saleable value which you own, i.e. properties, cars, caravans, properties abroad, time share, luxury goods, stocks, shares, investments and other valuable assets. If you own a part share of an asset, for instance a house, the ownership of your share passes to the Official Receiver. If you cannot arrange for a third party to buy your share of the equity, the Official Receiver can force the repossession and sale of it. If this asset is your home, you will be forced to move out.
Will Bankruptcy clear all my debts?
No. Bankruptcy will not clear any secured debts you may have. Also student loan company debts, fines, council tax arrears and family court orders for maintenance will not be included in a Bankruptcy.
What savings can you keep in Bankruptcy ?
Pensions are generally protected in a bankruptcy, but savings, shares, investments and equity in property will lost to the Trustee.
What assets can you keep in Bankruptcy ?
The trustee will generally allow you to keep a modest motor vehicle and any tools required for you to earn an income.
What other assets can you keep in Bankruptcy ?
The trustee will generally allow you to keep your ordinary household contents, i.e. Tv, stereo, computer, sofa, washing machine, etc.
What about working whilst in Bankruptcy ?
You retain the right to earn an income, but the effect Bankruptcy has on your position within a business depends on your occupation. If you hold a professional license, your regulatory body will need to be informed which may result in a suspension of your license. If you are a director of a business you will be required to resign your directorship and if you hold shares in the business they will be sold. If you are in a partnership, your fellow partners will be required to buy out your interest in the business. If you are a sole trader, you can continue to trade, but you will not be able to have any credit agreements with suppliers above £500. If you are employed, you bankruptcy ought to have no effect on your right to work, however, if your occupation involves handling money and dealing with finances, your future employment will be at the discretion of your employer.
What about your privacy in Bankruptcy ?
Because a Bankruptcy is a court process, details of which are in the public domain, your bankruptcy will be published in the press which may appear in a local newspaper.
What else could happen whilst in Bankruptcy ?
If you receive an increase in income or inherit money from a deceased relative's estate, or enjoy a windfall like a lottery win, you will be obliged to inform the Official Receiver and make the money available to your Bankruptcy estate.
How long will my Bankruptcy last ?
Your Bankruptcy will last for 12 months, after which time you will receive an automatic discharge. However, in cases where it is judged the debts were incurred through irresponsible or excessive spending you could be held bankrupt for a maximum of 15 years.
The IVA option.
What is an IVA ?
An IVA is an alternative to bankruptcy. An IVA, or Individual Voluntary Arrangement, is a private, legally binding agreement between you and your creditors. An IVA enables you to offer your creditors a structured repayment program over an agreed time period, which is normally 5 years. The IVA repayments are based on your disposable income (i.e. how much you can actually afford to pay back each month once your essential living expenses have been deducted). The IVA is proposed to your creditors through an insolvency practitioner, who acts on your behalf by seeking a vote of acceptance for the IVA from your creditors. It is necessary to achieve acceptance from 75% of your creditors before the IVA can be considered binding on all of them. Once accepted, an IVA protects you from your creditors taking legal action, and also protects your assets from being seized by your creditors. Any outstanding balances on your debts that still remain at the end of the IVA will be written off by your creditors.
In an IVA, what happens if you own your home ?
An IVA protects you from having to sell your home, but you will be required to release available equity from it via a re-mortgage. If you have part ownership of your home, you will only be required to release the proportion of your part of the equity a re-mortgage will allow. The IVA protects you from having to sell the property.
What assets will be sold as part of your IVA ?
An IVA allows you to keep all your assets intact, although if you own a valuable asset that is not essential to your livelihood, i.e. a caravan, a second property or an expensive motorcar, you may be required to replace it with a more modest vehicle and give the balance of money to your IVA fund.
How will an IVA effect my savings ?
Generally your pension will be protected, and modest contributions can continue to be paid in to it during your IVA. It is possible to exclude assets from your IVA but you will be required to inform your insolvency practitioner of any savings, stocks, shares and other investments you may hold.
What other assets can I keep whilst in an IVA?
All personal possessions and household contents will be protected in the IVA.
How will an IVA effect my work ?
An IVA is not Bankruptcy, therefore you are able to continue as a director in a business. Also professional license holders are able to continue practicing. Partnerships can also continue to trade, and because the IVA is a private agreement, your employer will not be informed.
How will an IVA effect my privacy ?
The details of your IVA are not published in the press, however they will be held on the IVA register which is a public record.
What other effects will my IVA have ?
You will be required to inform your insolvency practitioner of any inheritance or good fortune gains like a lottery win, and these funds will be made available to your IVA fund. Your finances will be subject to an annual review by your insolvency practitioner for the duration of your IVA and adjustments to your IVA payment will continue to be based on affordability.
How long will an IVA last ?
An IVA can vary in length from 1 payment to 60 payments, but a standard IVA will last for 5 years.
What debts will an IVA clear
Your IVA will clear only your unsecured debts, e.g. personal loans, credit cards, catalogues and overdrafts. However, an IVA will not clear secured debts, fines and family court orders for maintenance.
What happens after my IVA finishes
You will be debt free. You will receive a certificate of completion from your insolvency practitioner, and you should inform the relevant credit reference agencies, e.g. experian or eqifax, of the successful completion of your IVA for them to update your credit file.
As you can now see, the IVA is a real alternative to Bankruptcy.
An IVA is not an easy solution, and neither is it always a 'better' solution, but if you are in any doubt which option you ought to be pursuing, take the time to do your homework. There are specialist companies available that dedicate their services to helping you make this decision.
Blue CashSM from American Express®
