Re the question of survival of Trust - this is what it says in my IVA document which quotes Insolvency Act 1986
'29(3) ( Effect upon Trusts of termination of Arrangement ) Upon Termination of the arrangement( within the meaning of Paragraph 11) the trusts referred to in sub-paragraphs (1) and (2) shall cease save that assets already realised shall ( after provision for supervisor's fees and disbursements) be distributed to arrangement creditors'
- so whta does that all mean?
In my opinion this relates to failed IVAs i.e. those that were terminated and not successfully completed. Any assets held in the IVA would be for the benefit of IVA creditors only and would not be passed to a Trustee in bankruptcy for their costs. It also means post IVA creditors do not get any of the IVA money but I do not believe this has anything to do with successful closure of IVAs. If the IVA successfully completes the Trust has not been broken and survives the IVA closure.
I do not think it is an after acquired asset as the right to reclaim this existed at the time the IVA was approved even if no one knew about it. I hope it works out for you as likely your creditors have no record of you any more.
This what my agreement says about After-acquired assets - this was included as a modifiaction in my agreement
28(2) (after acquired Assets to be supplementary) After-acquired assets shall be sole or realised to extent necessary to effect full repayment of the Creditors together with interest, if any, to which creditors are entitled pursuant to the Arrangement and as such will be supplementary to any other contribution or property which the debtor is to include in the Arrangement.
28(3) ( Continuance of Debtor's obligations) until the issue of a Completion Certifiacte all the Debtor's obligations under the arrangement, including any obligations to make contributions or realise property, continue notwithstanding the realisation of any after-acquired assets
@michael - ok so you are saying the PPI refund is not an after-acquired asset but an asset that should have been included at the time the IVA was set-up then?
@michael - ok so you are saying the PPI refund is not an after-acquired asset but an asset that should have been included at the time the IVA was set-up then?
The fact that the asset was not specifically excluded means that it is 'de facto' included under R3 terms and conditions. Protocol is different but your IVA was way before protocol so I doubt if that is relevant. I do believe that the asset belongs to the IVA but the question still remains as to who is the Trustee?
Say my parents have an asset written in trust to me before or during an IVA. And that upon their demise it's realised, if the IVA trust survives beyond term, does that asset then technically still belong to the creditors?
Nickjohn if you have the original paperwork I think you have 10 years in which to make a claim, they only need to keep it for six
Sponge, if it's a term of the trust that ownership of the asset does not pass to you until the death of the donors and that occurs after completion of the IVA then it is not an asset of the IVA.
Much would depend upon the wording and intention of the trust deed.
In the bigger picture there would seem to be no real benefit of the costs of getting a trust set up, as in the circs described a Will would achieve the same result.
My opinions are merely that .. opinions based on experience. Always seek professional advice.
IVA Completed 23rd July 2013 .... C.C. 10th January 2014
Thinking random thoughts re the above ...... if you were in an IVA and ,say, parents left you an inheritance and passed away whilst you were still in the IVA, the proceeds would be gobbled up by the IVA.
What if they left any bequest in trust to you on the condition that you cannot take the assets out of trust (ie gain full ownership) whilst insolvent ?
My opinions are merely that .. opinions based on experience. Always seek professional advice.
IVA Completed 23rd July 2013 .... C.C. 10th January 2014
So long as that clause was effected whilst the debtor was solvent, and not therefore effected to put assets beyond the reach of creditors, then I believe that the trust would stand
Another thought - seeing that I decided to make the PPI Claim 3 years after my IVA was completed and that I did all the work to acheive the claim refund rather than use a Claims company, is it not reasonable that I should keep the fee a PPI claims company would have taken for maiking the claim - lets say 30% of the refund?
