December 2006
Introduction
i The Enterprise Act 2002 (EA2002)
The EA2002 Schedule 22 introduced a new streamlined 'fast track' individual voluntary arrangement (IVA) procedure (FTVA) that assists in the arrangement of IVAs after a bankruptcy order has been made. The official receiver is able to act as supervisor of an FTVA provided that the debtor is an undischarged bankrupt at the time the proposal is made.
The fundamental basis of an FTVA is that the creditors will receive additional monies that would not normally be available in the bankruptcy e.g. the inclusion of third party funds or an extended period of contributions from income. The role of the official receiver is to set out the options available to the bankrupt. If, as a result of the proposal, the creditors will receive more with an FTVA than in the bankruptcy a proposal should be put to the creditors.
FTVAs are applicable to all bankruptcy cases not just where the bankruptcy order was made after 1 April 2004. Generally, any proposal with less than £5000 of assets is unlikely to be worthwhile. Tables showing worked examples of the calculations comparing the return to creditors in an FTVA and the return to creditors in a bankruptcy taking into consideration all the fees and costs involved are available in annexes 1-5 of Technical Manual chapter 20.
ii What are the requirements for an FTVA?
The FTVA provisions will only apply where:
As stated previously, the key factor in deciding if the official receiver should agree to act as nominee/ supervisor in a voluntary arrangement is whether or not the creditors would get a better return with an FTVA than would be available in bankruptcy. The official receiver should only agree to act as nominee in simple asset realisation cases e.g. cash at bank, contributions from income or the introduction of third party funds. Where the bankrupt wishes to apply for an FTVA and the case involves complex asset realisation, e.g. where there has been trading or where the assets are 'risky' or time consuming to realise, the bankrupt should be referred to an insolvency practitioner for an IVA.
iii Exceptions or when would it not be suitable for an FTVA?
The official receiver is not obliged to accept an FTVA nomination. In instances where there are clear grounds for a bankruptcy restriction order (BRO) or for the submission of a statement of facts to the Criminal Allegations Team the official receiver should decline to act as nominee. But where the official receiver declines to act, it would still remain open for the bankrupt to approach an insolvency practitioner to act as nominee.
In most cases, at the point when the FTVA decision needs to be taken there will not be enough evidence to say categorically that the case should be a criminal allegation or a BRO . It would be wrong for the official receiver to delay taking an FTVA decision or decline to act on the grounds that there might be a BRO or that a criminal allegation will be made. The official receiver should consent to act in suitable cases unless there is strong evidence of misconduct. Where the official receiver's duty to seek best returns for the creditors conflicts with that to protect the public, the protection of the public is paramount.
In a case where the only asset is payment to be made from income, there must be a better return to creditors than could be achieved from an income payments order (IPO) or income payments agreement (IPA) e.g. the bankrupt agrees to pay a bigger proportion of income than would be claimed by the official receiver in an IPO/IPA or the bankrupt agrees to pay for a longer period e.g. 4 years.
iv Initial Interview and Initial Actions
In all suitable cases, the possibility of an FTVA should be drawn to the bankrupt's attention at the initial vetting interview. Even though the bankrupt has indicated his/her intention to apply for a FTVA, the Income Payments Agreement/Order forms must still be completed at the first interview stage. The processing of any Income Payments Order/Agreement should be delayed initially whilst the FTVA is under consideration. Where the bankrupt wishes to consider an FTVA he/she should be given the standard forms for completion. If the FTVA subsequently fails the Income Payments Order/Agreement can be actioned immediately.
The continuation of other initial actions are not stayed by any proposed FTVA application e.g. the sending of the report to creditors. It will be for the official receiver to use his/her discretion as to whether to continue with the bankruptcy actions on a case by case basis taking into account the likelihood of the proposal being accepted by the creditors and other circumstances of which he/she is aware.
v How much assistance should be given by official receiver's staff in completing the proposal?
Again, the official receiver should use his/her judgement on a case by case basis to determine how much help should be given to the bankrupt in preparing the proposal, bearing in mind the likelihood of acceptance by the creditors and whether they will get a better return, etc. There is an appropriate fee chargeable as nominee, see paragraph vii below
vi 14 day time limit
The completed FTVA forms must be returned by the bankrupt within 14 days of receipt. If they are not the official receiver should activate the IPO/IPA process and continue with the normal administration of the case. The bankrupt should be notified of this.
vii Registration fee and Nominee's fee
There is a registration fee of £10 (IVA1) which is payable when the bankrupt returns the FTVA proposal. This is for the registration of the FTVA on the individual insolvency register should creditors accept the bankrupt's proposal. The FTVA proposal must also be accompanied by a nominee fee of £300 (IVA2). This is charged by the official receiver for acting as nominee. For legal reasons both fees should be treated as a deposit until a decision has been taken by the official receiver on whether to act as nominee.
The FTVA deposit of £310 may be paid by cash, cheque or direct payment into a specific account with the Bank of England opened to deal with the receipt of FTVA monies (account number 20000634, sort code 10 00 00). The deposit must not be paid into the estate account. Any funds relating to FTVAs are not paid into the Insolvency Services Account (ISA).
viii KYPERA
FTVAs are accounted for by a system known as KYPERA. Kypera enables the FTVA to be tracked at all stages from the original FTVA proposal through to the final distribution. All data input into Kypera is carried out by the RTLUs and/or Finance Section. The input dealt with by RTLUs will require the back capture of data and thus it is essential that the FTVA action sheet is completed by the official receiver with a record of all the events and dates. A separate FTVA action sheet should be completed by RTLU.
ix Bankrupt's Proposal
The proposal is the key document in any voluntary arrangement. There is a standard proforma available on the Intranet on the OROS homepage under LOIS workbooks and forms: FTVA Process Forms which may be downloaded for the bankrupt to use; it is also available on The Service's website. The proposal must:
A proposal should set out clearly the debtor’s obligations particularly as to the time and amount of contributions, so that there can be no dispute over whether he/she will comply with the terms of the arrangement. In particular the proposal, needs to be clear about the following:
The proposal should not attempt to predict the amount of the distribution to creditors e.g. xp in the £, as this will be dependent on the amount of the claims received/notified.
For further details on the bankrupt's proposal see Technical Manual Chapter 20, Part 6.
x The Official Receiver's decision
Upon receipt of the bankrupt's proposal, the official receiver has to decide whether the proposal has a reasonable prospect of being approved and whether or not he/she agrees to act as nominee. In deciding whether or not to act as nominee in an FTVA, the official receiver will need to take into consideration the level of liabilities, the number of creditors and the likely amount to be realised as supervisor. In cases where there are a large number of creditors the cost of distribution in an FTVA may be prohibitive.
The official receiver must notify the bankrupt of his/her decision within 28 days of receiving the proposal. Form FTVALET2 is available for this purpose. In cases where the official receiver has agreed to act as nominee he/she should also send a copy of the notice to Finance Section. If the official receiver is unable to reach a decision on the information provided by the bankrupt he/she must specify what further details he/she requires and serve notice of his/her decision on the bankrupt within 28 days of receiving that further information.
If the official receiver declines to act as nominee, the administration of the bankruptcy will continue in the usual way. The bankrupt may approach an insolvency practitioner to act as nominee. Where the deposit for the registration fee and nominee's fee has been paid by the bankrupt this will be retained and credited to the bankrupt's estate account. Where it has been paid by a third party it will be returned to that third party. The official receiver will need to notify Finance Section as to whom the deposit should be returned. This information will have been recorded on the FTVA action sheet.
xi Approval of the proposal
Once the official receiver has agreed to act as nominee, and having confirmed with Finance Section that the nominee fee and registration fee has cleared where it was not paid in cash, he/she must send to all creditors and any insolvency practitioner trustee, a copy of the proposal and a notice FTVAVOT inviting the creditors to approve or reject the proposal. The creditors must either accept or reject the proposal as submitted, modifications to the proposal cannot be made. The creditors will be given a final date on which the official receiver will accept their votes. This date must be not less than 21 days from the date of the notice.
A proposal is approved by the creditors if a majority in excess of three-quarters in value of those who voted approve the proposal.
xii Entitlement to vote
A person is a creditor of a FTVA only in respect of a debt which is provable in bankruptcy and the official receiver is aware of his claim and his address. The amount of his/her debt is that which is outstanding at the date of the bankruptcy order. The official receiver has the power to admit or reject the creditor's claim in full or in part.
xiii Report of Result
On approval of the FTVA by the creditors the official receiver should transfer the case to RTLU and change the case status on LOIS accordingly.
As soon as possible after the approval of the FTVA, the RTLU official receiver must report to the court on whether the FTVA has been approved or rejected. Form FTVAREP should be used for this purpose. Upon reporting its approval to court by the creditors, the FTVA becomes effective thereby binding the debtor to the agreement and every person who was entitled to take part in the arrangement. The official receiver must give written notice of his/her appointment as supervisor of the FTVA to Insolvency Practitioners Unit (IPU) acting on behalf of The Secretary of State. Form FTVANTR is available for this purpose and is e-mailed to "IPU". RTLU inform Finance Section of the approval or rejection by entering on Kypera. If an IP has been appointed as trustee, the official receiver must also give notice to him/her.
The RTLU will deal with the realisation of the FTVA, application for annulment, the supervisor's reports and accounts and any distribution to creditors.
If the creditors have rejected the FTVA, generally the nominee fee should be retained as the official receiver has carried out the necessary work to justify charging this fee. The deposit for the registration fee will be rebated as the FTVA will not require registration. If the deposit was paid by the bankrupt this will be retained and credited to the bankruptcy estate account. Where it was paid by a third party it should be returned to that third party. Finance Section must be informed of the creditors' decision to allow them to properly account for the deposit of the nominee and registration fees.
xiv Insolvency Practitioner Unit (IPU)
The Secretary of State (SoS) is required to maintain a register of all matters relating to IVAs. IPU at HQ Birmingam perform this function on behalf of the SoS. It is known as the individual insolvency register or IIR for short. IPU have a target of 24 hours (from the date the information is received into the section) in which to record details on Central Index which feeds into the IIR. The IIR is available electronically to members of the public through the Service's website; insolvency staff have access to the IIR via the intranet's homepage. Details recorded on the IIR are -
IPU must also be informed when the FTVA has been revoked, fully implemented or terminated. When IPU receives notice of one of these events all information concerning the FTVA is immediately deleted from the IIR.
xv Revocation of the FTVA
Within 28 days of the official receiver reporting the approval of the FTVA to the court, any of the following:
may make an application to the court for the revocation of the FTVA on the grounds that it unfairly prejudices the interests of a creditor of the debtor or that a material irregularity has occurred in relation to the FTVA in connection with the proposal, giving notice to creditors, etc. he/she should apply for revocation. IPU must be informed within 7 days when an FTVA is revoked, form FTVANTR is used for this purpose. RTLU inform Finance Section by recording the revocation on Kypera.
xvi Annulment of the bankruptcy order
Once an FTVA has been approved the official receiver will apply to the court for the bankruptcy order to be annulled. Such an application cannot be made during the 28 day period in which revocation of the FTVA may be sought (see paragraph xiv above). The annulment application should be made within 21 days after expiry of the 28 day period.
The official receiver should notify Finance Section of any annulment order made by logging on Kypera and enter the date of the annulment on LOIS. There is no need to inform the creditors of the annulment as they will have already been notified that this will occur following the approval of the FTVA ( FTVANOT2). If the former bankrupt wishes notice of the annulment to be advertised in the Gazette and/or any newspaper he must inform The Secretary of State (via the official receiver) in writing. The former bankrupt will be required to pay the costs prior to advertisement. If the petition deposit has been paid by a creditor this should be returned to them, where it has been paid by the debtor it should be accounted for in the proposal.
xvii Progress Reports
The official receiver as supervisor must keep accounts and records of his/her acts in connection with the FTVA, particularly with regards to all receipts and payments. At least every 12 months from the date of his/her appointment, the official receiver as supervisor must prepare a progress report including a summary of the receipts and payments account. A copy of this report should be sent to the debtor and all known creditors, form FTVACOMP may be used for this purpose. If during this period no receipts or payments have been made a statement to this effect must be sent.
xviii What happens if the debtor defaults on the FTVA?
Where the debtor fails to keep to the terms of the FTVA it will be terminated. Either the official receiver as supervisor or one of the creditors, may take steps to make the debtor bankrupt but where the debtor is not able to make payments or has no assets the official receiver should take no further action after the termination of the FTVA. If the debtor has deliberately not complied with the terms of the arrangement and is still in a position to make payments the official receiver should consider taking steps to make the individual bankrupt under section 264(1)(c).
Where the debtor has not complied with the FTVA because he is unable to do so, e.g. where the debtor has been made redundant, the official receiver should report the reasons for the termination of the FTVA to the creditors. Thus, it is important for the official receiver to ascertain as soon as possible the reason why the debtor has defaulted. Finance Section are responsible for informing the RTLU of any missed payments by the debtor.
Where the FTVA is terminated, IPU must be informed as soon as possible by selecting the appropriate option on form FTVANTR and sending it by e-mail to IPU. RTLU inform Finance Section of the termination of the FTVA by recording it on Kypera.
xix Priority of payments
The priority of payments in an IVA are set out in Rule 5.48 The fees, costs and expenses in respect of the performance by the official receiver of functions in relation to the bankruptcy (and those of any insolvency practitioner trustee) will be a first charge on any sums realised in the FTVA and those of the official receiver in relation to the FTVA a second charge.
The priority of payment in a FTVA is:
xx Completion of the FTVA
When the FTVA is completed (and in cases where it is terminated) the official receiver must, within 28 days, send to all creditors and the debtor a notice that the FTVA has been fully implemented (or terminated). This notice must enclose a final receipts and payments account and if necessary, should also contain an explanation of any differences between the actual implementation of the FTVA and the proposals approved by creditors, Form FTVACOMP is available for this purpose.
A copy of form FTVACOMP should also be e-mailed to IPU together with form FTVANTR. The Official Receiver is required to send notice of final completion of the arrangement within 28 days of conclusion. The official receiver cannot vacate office until such notices have been sent. RTLU also record the completion of the FTVA on Kypera.
Notes:
Where can I find out more?
Insolvency Act 1986 Sections 263A-G (as inserted by Enterprise Act 2002, Schedule 22)
Insolvency Act 1986 Sections 252-263, 324
Insolvency Rules 1986, R 5.35 - 5.50 (as inserted by Insolvency (Amendment) Rules 2003)
The Insolvency Proceedings (Fees) Order 2004, Schedule 2
Technical Manual
Chapter 20:Official Receiver's role in voluntary arrangements - Part 6 Fast Track Voluntary Arrangements.
Chapter 36:Estate Accounting
OROS Bulletin 1/06,paragraph 12
Forms to be used:
ANNULFTVA Application for annulment
ANNULFTVA2 Annulment order
FTVALET1 Letter to bankrupt with draft proposal
FTVALET2 Letter to bankrupt re: nominee proposal
FTVALET3 Letter to bankrupt re: payments
FVALET4 Letter including application and order
FTVANOT1 Notice re bankrupt's proposal for an FTVA
FTVANOT2 Notice re appointment of OR as supervisor
FTVARA Application for revocation
FTVAREP OR's report to court on proposal
FTVARO Revocation order
FTVAVOT Voting form
FTVADVDL FTVA Dividend Notice
FTVAPOD FTVA Claim form
FTVANTR FTVA Notice to HQ
FTVACOMP Completion statement/12 monthly report
Forms available from the Intranet:
Proforma FTVA Proposal form
Guidance notes for completion of FTVA Proposal.
IVA Action Sheet (OR)
IVA Action Sheet (RTLU)
Click HERE to view the flowchart for IVA's
Procedure
FTVA PROCESS
There is a LOIS Workbook: FTVAs available showing the relevant screens and information required for input onto LOIS.
1. IPA/IPO forms have been completed (IPOQ, IPA) and the case is identified as being suitable for FTVA. Delay processing IPA/IPO whilst FTVA is being considered.
2. FTVA proforma proposal is given/sent to the bankrupt for completion, together with guidance notes for reference under cover of Form FTVALET1. Record the date that the forms were given to the bankrupt on LOIS screen 8 under FTVA General. Diarise 14 days ahead for the return of the proposal.
After 14 days
3. If the FTVA proposal form has not been returned by the bankrupt activate IPO/IPA forms.
4. Where the FTVA proposal has been returned together with the deposit for the registration and nominee fees (£310). The OR will need to consider whether or not to act as nominee. The examiner will make the appropriate recommendation and put this forward to the AOR for a decision. The date that the FTVA proposal was received in the office needs to be recorded on LOIS screen 87. Also the date that the FTVA fees were cleared is input here; this will be the date that Finance Section confirms this.
5. If the OR declines to act, within 28 days of receipt of the proposal, send form FTVALET2 to the bankrupt notifying him/her of the OR's decision. Record the OR's decision not to act as nominee on screen 87 (PU605). Also Finance Section will need to be informed of how to deal with the deposit, i.e. whether it is to be retained and credited to the estate account or returned to a 3rd party.
6. Where the OR requires further information from the bankrupt before making a decision or an amendment to the proposal needs to be made, write to the bankrupt informing him/her of this and diarise appropriately for its return. The date that this letter is sent to the bankrupt must be recorded on LOIS on screen 87 together with a short explanatory comment.
7. If the OR has agreed to act as nominee ensure that the deposit for the fees has cleared in the Bank of England account. Normally, a cheque takes 5 days to clear but Finance Section will be able to confirm this. Record the OR's decision to act as nominee on screen 87 (PU605).
8. Within 28 days of receipt of the proposal notify the bankrupt of the OR's consent to act as nominee by sending form FTVALET2 and change the case status on LOIS (CA06).
9. Prepare form FTVANOT1 to the creditors outlining the bankrupt's proposal for a FTVA. Attach a voting form FTVAVOT to each notice. If there is an IP trustee in office a copy of these forms must be sent to him/her. Allow at least 21 days for the final date on which the OR will accept their votes. Record the date that the proposal is sent to the creditors (and trustee if appropriate) on screen 87. Also enter here the closing date for voting.
10. When the final date for voting has passed, pass all voting forms returned to the AOR/OR for the claims to be admitted. The AOR's /OR's attention should be drawn to any disputed claims. Record the result of the creditors' vote on LOIS screen 87 (PU996).
11. If 75% in value or less of the creditors have voted in favour of the proposal the FTVA has failed and will not proceed.
12 Where more than 75% in value of creditors who vote are in favour of the proposal the OR becomes supervisor. Record the details on LOIS (CA06) and transfer the case to RTLU immediately.
13. RTLU will prepare and send form FTVAREP (Report to court of approval of proposal) on LOIS (DO73).
14. The RTLU will deal with the realisation of the FTVA, application for annulment and any distribution to creditors on behalf of the supervisor.
Revocation of the FTVA
15. In the rare event that the OR becomes aware of any material irregularity in the proposal or that the interests of the creditors have been unfairly prejudiced, the OR should apply to court for the FTVA to be revoked. Any application for the revocation of an FTVA must be made within a period of 28 days since the report of the result (form FTVAREP) was filed at court. Forms FTVARA (application) and FTVARO (revocation order) should be used for this purpose. Where necessary any guidance in completing these forms will be given by the examiner/AOR. Send 2 copies of forms FTVARA to court.
16. The court will return a copy of the application (FTVARA) with an order stating the date and time that the application will be heard. The OR as supervisor must give notice of the hearing to the debtor and any IP who is trustee.
17. At least 2 days before the hearing. Prepare 2 copies of form FTVARO on LOIS (DO73) and pass to the AOR who is attending court together with the relevant documents from the office file. If you are not certain of what information is required by him/her please refer this to your B1 or the examiner concerned.
18. When the revocation order (form FTVARO) is received from court as soon as practicable, the OR as supervisor must give notice of the revocation to all persons who were sent a copy of the bankrupt's proposal and all other persons who are affected by the order.
19. The OR must inform IPU of the revocation within 7 days of the order being made. Form FTVANTR is used for this purpose and is sent by email . The OR should also inform Finance Section of this by entering on the action sheet on Kypera.
Annulment of the bankruptcy order
20. RTLU (on behalf of the supervisor) must make an application to the court for the annulment of the bankrupt. The application should be made no sooner than 14 days after the expiry of the period of 28 days following the date that form FTVAREP was sent to court. Prepare and send form ANNULFTVA (application) and ANNULFTVA2 (order) to court enclosing a copy of the bankrupt's proposal marked as "OR1" and a copy of form FTVAREP marked as "OR2".
21. When the BO has been annulled by the court, there is no need to inform the creditors of the annulment as form FTVANOT2 advised them that annulment would follow the approval of the FTVA.
Where the debtor defaults under the terms of the FTVA
22. Finance Section will inform the RTLU when the debtor misses a payment. The RTLU will contact the debtor to find out the reason why this has occurred. In the first event any contact should be made by telephone. Where this is not possible a letter should be sent by 1st class post pointing out that if he/she continues to default under the terms of the FTVA the debtor may be made bankrupt. If there is no response from the debtor a final reminder must be sent by 1st class post and recorded delivery.
23. Where the debtor has still not replied the case should be returned to the original OR to apply to the court for termination of the FTVA and also to consider taking steps to make the individual bankrupt under section 264(1)(c).
24. Where the FTVA is terminated the supervisor must send, within 28 days, a notice to all FTVA creditors and the debtor that the FTVA has been terminated, the notice should include a summary of any receipts and payments made, form FTVACOMP may be used for this purpose. The notice accompanied by form FTVANTR should also be emailed to IPU acting on behalf of The Secretary of State. The supervisor cannot vacate office until this has been done. RTLU should also notify Finance Section by recording the termination on the action sheet on Kypera.
Distribution in an FTVA (Proposal is the key document)
25. Details of the person who paid the nominee fee should be entered on Kypera. If the fee has been paid by a 3rd party and the OR rejects the proposal £300 (fee IVA2) is refunded to the appropriate person. Where the bankrupt has paid the fee and the proposal is rejected £300 is transferred to LOLA. Fee IVA1(£10) registration fee is retained.
26. RTLU input the debtor's details on Kypera. It is important to record all contact details such as telephone numbers etc.
27. RTLU record the creditors' details on Kypera. All reference/account numbers must be input where known.
28. Finance Section will arrange for a BACS transfer of funds from Kypera to LOLA in respect of any debit balance to be written off.
29. RTLU will contact petitioning creditor's solicitors for bill of costs. Kypera will automatically deduct Supervisor's remuneration.
30. Once the petitioning creditor's solicitors' costs have been paid the proposal should state when distribution is to be made. If an IPA/IPO is in force distribution will probably be at the end of the term. Where an FTVA has been approved based upon the payment of monies from a third party, once third party funds have been received a distribution can be made.
31. At least every 12 months from the date of his/her appointment, the OR as supervisor must send a progress report (including a summary of the receipts and payments account) to all creditors and the debtor. Form FTVACOMP may be used for this purpose selecting the appropriate option. If during this period no receipts or payments have been made a statement to this effect must be sent.
32. When all funds have been received the OR will require the creditors who have not previously submitted their claims by voting on the proposal (FTVAVOT) to provide details of their claims. Prepare form FTVADVDL and send to all known creditors who have not submitted a claim enclosing a form FTVAPOD. Form FTAVDVDL will specify the date by which claims should be received by the supervisor.
33. When a distribution is to be made, the Distribution Calculator form should be used to determine how much each creditor will receive. Finance Section will do this and also request requisition of the dividend cheques from RTLU. Finance Section will send the dividend cheques to the creditors.
34. Where a creditor has not submitted a claim at the time the payment is made sufficient funds should be set aside to enable that creditor to receive the same rate of payment at a later date based on the amount of the claim as known.
35. Where the FTVA has been completed the supervisor must send notice, within 28 days, to all FTVA creditors and the debtor that the FTVA has been completed, the notice should include a summary of any receipts and payments made form FTVACOMP may be used for this purpose. Forms FTVACOMP and FTVANTR should be emailed to IPU. The supervisor cannot vacate office until this has been done. RTLU should record the completion on the action sheet on Kypera.