I started an IVA in 2005 and was lucky enough

[paulel]

I started an IVA in 2005 and was lucky enough to be able to settle it early (in June 2008). Having read the posts on your website I have started the procedure of claiming back the unfair credit card charges (that were one of the reasons I had to go into an IVA in the first place). The charges were included by the creditors in the IVA debt.

However, one creditor has told me that as I took out an IVA I automatically waived my right to reclaim any charges. Is there anything I can do?

[kallis3]

Hi,

I don't think they are right. You are entitled to claim back those charges even if you were in an IVA. Now that the IVA is concluded, the charges should come to you.

One of the professionals should be able to advise further.

[Michael Peoples]

I am not sure as this is a legal issue. However, in an IVA the creditor would reduce their claim if found guilty of unfair charges so I doubt if they would repay any charges post IVA unless you cleared the IVA at 100p in the £.

[kallis3]

If the IVA was completed though Michael, the creditor would surely have to pay back the claimant in full if the charges claim was agreed?

[Michael Peoples]

I don't know Jan but if the creditor wrote of a percentage of the debts in the IVA they could end up repaying more to the client than they actually received in dividends. I am sure they will try and find any way not to repay but a solicitor is probably the best person to speak to for advice.

[kallis3]

An interesting one!

[johnnybriggs]

I can't see how that would work.
The debt amount the creditor claimed at the IVA meeting included all the bank charges. The creditor agreed to write off a percentage of that debt.

Not sure you can then go after them for the charges...

[MelanieGiles]

I agree with Michael - I cannot see any bank agreeing to pay directly to a client if they suffered a write-off in the IVA.

[Adam Davies]

Hi
However it could be argued that if the charges were not legitimate that they should not form part of the debt in the IVA.
An interesting one
Regards

[Michael Peoples]

It is interesting Andy because if that was the case the creditor would have had an inflated claim to the detriment of the other creditors so any reclaim should morally go to them.

[MelanieGiles]

Correct answer!!

[ivas4us]

I have just caught up with this thread and as another point if the charges had been refunded prior to the iva then would this have been used as a payment at the start of the iva to reduce the debt.

[paulel]

Many thanks to everyone who's contributed to my question.

One other point that occured to me:

The creditors may argue that I should not receive a refund of the charges as I never actually paid them, actually I still owe them as part of the debt I entered and the creditor claimed in the IVA which, I didn't repay in full anyway.

However, The credit card companies all state in their terms and conditions on the loan/credit card agreements that payments are made reduce the balance on the account in the following order:

Default charges and interest on default charges
Promotional balances (including interest) and fees
Other interest fees and charges
Standard rate purchases and balance transfers
Cash balance.

Therefore – where they have received a dividend under the IVA, their default charges and fees would have been the first element of the debt to have been paid.

As such, I "should" be able to claim them. I guess there's no harm in trying...

[MelanieGiles]

No - your other creditors should benefit from this, as they have suffered due to the bank getting a dividend on an amount that was too high.

[ivas4us]

I would agree with Melanie. Basically you could spend a lot of your time and at the end of the day have nothing to show for it. I was once told something that may apply here "let sleeping dogs lie"