by Jacquelyn Duffy
It’s a significant worry for those who are pondering entering an IVA as to how that process is going to have an effect on their mortgage. Will they lose their house? If they are married or simply co-habiting then they want to make certain that anything that crops up due to their getting into the IVA will not impact adversely on their spouse or partner. Let’s look into the side effects of an IVA on the mortgage of a single person to begin with.
Your Individual Voluntary Arrangement proposal has to contain the debtor’s statement of affairs which completely divulges all of the debtor’s liabilities and assets and it also needs to provide a declaration regarding the debtor’s earnings and his or her living expenditures. The I&E statement, as it’s termed, typically demonstrates the average one month period. Expenditures that arise annually are shared out over the twelve months on a notional basis. Take motor insurance, for instance. If the motor insurance premium is paid once each year, then the monthly I&E declaration will present a figure equal to one twelfth of the yearly premium.
A property such as a house is an asset and if you have a mortgage on it you also have a liability. The asset could have equity in it if its up-to-date realisable value is greater than the amount needed to redeem (or pay back the balance of) your mortgage, which includes any pertinent early redemption penalties. The monthly mortgage expense is commonly the largest single item of expenditure on anybody’s I&E statement. So first and foremost, you have to reveal a lot of facts to your creditors regarding your assets, including your property, in your IVA proposal. The single person offering an IVA to creditors should not be unduly worried about the impact of the IVA on their mortgage. Lenders will usually allow the insolvent individual to continue to pay the mortgage right through the time period of the IVA, provided that the amount of the monthly mortgage payment is not an excessive portion of the debtor’s net earnings. If the monthly mortgage payment is of the order of 40% or more of the debtor’s net income, then lenders could possibly deem that to be too much and might ask the question as to why the debtor shouldn’t sell the property and reside instead in rental accommodation. Gains for creditors could come through the release of equity from the sale of the property if a substantial portion of those funds were to be contributed to the IVA as well as the savings arising from renting housing as opposed to having to pay a mortgage.
Generally however, creditors do not demand that a mortgaged property be sold. Instead they frequently look for the borrower to realize any equity in the property and to donate a substantial amount of the equity funds realized into the IVA in the last year of the IVA term, normally the fourth or fifth year. At that time, the debtor would be expected to remortgage or sell off the property to liquidate any equity therein. In truth the recession has made these options for releasing equity very difficult. The person in debt may not be able to get a remortgage because of his or her poor credit history because of having to enter into an IVA in the first place. If a remortgage can be obtained, the monthly mortgage installments would be likely to be at penal interest rates and so be too expensive for the debtor. If selling the property is the only way of realizing any equity therein, lenders are usually reluctant to engage in this course of action unless the amount of equity is going to be substantial. In a buyer’s market, that is unlikely to be the situation.
What then about a married or co-habiting couple? Being married or co-habiting usually signifies that most ordinary aspects of life are shared by partners. Utilities like water and electricity are used in varying amounts by co-habiting persons and travel costs can vary greatly between the partners. Thus for each item of expenditure, the partners might sustain greatly varying living expenses, irrespective of the level of each partner’s earnings. Considering income however, it is easy to work out the relative percentages of the household income that each partner brings in. The evidence of earnings is based on pay-slips, P60’s, tax credits awards and the like. The normal treatment of everyday living expenses is for each partner to pay such expenses in the same ratio as their income. For example, if partner A generates two thirds of the overall household earnings, then that partner is liable for paying two thirds of the living expenses.
The ownership of assets depends on many factors. Every asset like a car or a house might be wholly or partially owned by either partner. Certain assets may be owned on a 50/50 basis or on an entirely different basis. As an example, if partner A owned a dwelling house outright and partner B moved in to cohabit, then it would be manifestly incorrect to claim that they each owned 50% of that house from the first day.
Each partner is personally liable for his or her own liabilities and both partners are responsible for jointly sustained debts. One particular partner may have a large amount of liabilities and the other have very few and there may be some or no joint liabilities. Accordingly, one partner may be insolvent and the other not. If the insolvent partner makes a decision to enter into an IVA, it will probably have some effect on the solvent partner. The first effect is that the household income and expenditure has to be revealed to the creditors of the insolvent partner. Creditors will call for a statement of income and expenditure for the household explaining how living expenses are addressed and settled.
Regarding assets such as a property, creditors will expect to see who owns what and in what relative amount. This is especially crucial if there is equity in a jointly owned property. Lenders would be expecting the insolvent partner to deal with his or her share of the equity for their advantage. The insolvent partner might have to re-mortgage or sell the property and could not do so without having the permission and agreement of the solvent partner.
A key factor in all of such things is whether or not the partners have decided to pool their resources when they began to cohabit or indeed at some point thereafter. Even without having a formal arrangement, it might be implied from the evidence of their lifestyle and expenses that they have so done. It could be that the solvent partner voluntarily agrees to support the insolvent partner who is proposing the IVA by donating some or all of their own surplus income to the IVA.
Finally, the insolvent partner’s IVA may have an effect on the other partner’s credit score. The IVA should have addressed any joint debts, with creditors getting a dividend from the IVA. However, the solvent partner has to keep up with the full contractual repayments on any joint debts during the life of the IVA and will have to settle any balance remaining on the joint account after the IVA is concluded. Of course, any dividend paid from the IVA would cut short the duration of the remaining term of such debts. During the life of the IVA the solvent partner may also need to deal with the unwillingness of lenders to lend funds, knowing of the insolvent partner’s IVA.
Nevertheless, many individuals have successfully completed their IVAs without detrimentally impacting their solvent partner. A properly put together IVA will contend with all matters concerning income and expenditure as well as assets and liabilities and permit both partners to grasp the chance to entirely and finally recover from their financial problems.
About the Author:
McCambridge Duffy is a leading provider in
debt solutions and Financial Services. We’ve got
Chartered Accountants and Insolvency Practitioners who’re highly competent within their field of expertise.