Insolvency Practitioner keeping PPI claim after IVA completion or PPI claim firm not sending it to you – ask for it back.

At the time of writing this case has not been further heard in the high court, I will update of it is (16/10/15).

If you completed your IVA before the date of the Green V Wright court of appeal ruling you may be able to claim back the PPI money of the claims firm sent it to your IVA supervisor instead of you (assuming you didn’t sign something to say they could keep any future PPI settlements).

Here is a template letter you could send to the PPI claim firm if they write to you to confirm they are sending a settlement to the IVA firm after you have completed. Also below is a slightly modified one to send to the IVA firm if they have already been sent the PPI settlement.

Dear Sir/Madam.

Date : xx/yy/zz

Your ref: abc123

I refer to your communication of xx/yy/zz. In your letter you have advised that a PPI settlement of £xxxxx from your firm is due for payment. You have further advised that you will be sending this payment to as the claim is subject to an Individual voluntary arrangement (IVA).

Please find attached my certificate of completion which confirms that my IVA completed on xx/yy/zz and I am no longer bound by the obligations of the IVA. Furthermore there is no deed of assignment or any other agreement in place which agrees any subsequent PPI settlements post completion will be sent to the insolvency practioner who supervised my previous IVA.

I refer you to current case law as heard in the high court, green V Wright – Neutral Citation Number: [2015] EWHC 993 (Ch) Case No: M14C358, the transcript is available here http://www.bailii.org/ew/cases/EWHC/Ch/2015/993.html

Whilst I understand the defendants do intend to appeal the current high court decision this may take many years (or may not even happen) and current law confirms that as
the party who was subject to the IVA no longer has any further obligations under the IVA any PPI settlements should be paid direct to the claimant, in this case myself.

I would appreciate if you would send me written confirmation that you you have understood the above and will be sending this settlement of PPI direct to myself and not to my previous IVA supervisor who no longer has any claims over these monies.

Kind regards…..

Letter to IVA firm……

Dear Sir/Madam.

Sate xx/yy/zz
Your ref: abc123

I have been advised that you been haven sent PPI settlements in my name. These settlements were sent after my IVA completion date of xx/yy/zz.

Please find attached my certificate of completion which confirms that my IVA completed on xx/yy/zz and I am no longer bound by the obligations of the IVA. Furthermore there is no deed of assignment or any other agreement in place which agrees any subsequent PPI settlements post completion will be sent to the insolvency practioner who supervised my previous IVA.

I refer you to current case law as heard in the high court, green V Wright – Neutral Citation Number: [2015] EWHC 993 (Ch) Case No: M14C358, the transcript is available here http://www.bailii.org/ew/cases/EWHC/Ch/2015/993.html

Whilst I understand the defendants do intend to appeal the current high court decision this may take many years (or may not even happen) and current law confirms that as
the party who was subject to the IVA no longer has any further obligations under the IVA any PPI settlements should be paid direct to the claimant, in this case myself.

I would appreciate of you would send me written confirmation that you have understood the above and will be sending this settlement of PPI direct to myself without any fees deducted.

Kind regards…..

Bla bla bla

Your own legal advice is probably worth it to confirm if they could claw it back in the future if the subsequent high court ruling does happen,I personally doubt they could, that would be akin to someone getting a divorce settlement and then the law changing 2 years later to say well erm 50-50 on everything is now 60-40 and were going to review all previous divorce settlements !

What you might find is the firms just drag their heels instead waiting for the subsequent hearing, I n which case you could add that any delays in payment will be charged 8% per annum from the date of this letter (why important to have date on letter)in any subsequent claim. Send by recorded delivery, or indeed have a solicitor draft it for you if they don’t play ball.

I am not legally or financially qualified, it’s just what I would do myself.

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Do the Credit Reference Agencies have to keep IVA on file for 6 years ?

I have searched high and low and am unable to find any act, statutory Instrument or law/agreement that allows credit reference agencies the right to keep an IVA on your credit file after it has been removed from the insolvency register, 3 months after completion. Normally if you have served your time in an IVA of 5-6 years this wont make that much difference as it will disappear relatively quickly.

If, however you settle early, or do a lump sum IVA, this could have a real detriment to you. If the Insolvency service remove the data from the public domain how can a Credit Reference Agency (CRA) keep it as a listed public notice.

I have tried to complain to one of the CRA’s about this but they refuse to remove it on stating they may retain it on my file due to legitimate interets. Here is what they said;

Dear Mr Smith

Thank you for your updated response about the Individual Voluntary Arrangement showing on your credit report.

I’m sorry that you’re unhappy with the way Equifax are processing your personal data. I’ve now reviewed your complaint in full and have included our final response below. You can see more about how we handle complaints by clicking the below link.

Answer Title: What’s the Equifax complaints procedure?
Answer Link: https://equifaxuk.custhelp.com/app/answers/detail/a_id/225

After receiving your documents on xx/yy/zz confirming that your Individual Voluntary Arrangement had been completed, we reviewed the information we held and updated the record on our database to reflect this change. This was completed on xx/yy/zz +1 and an updated report was provided to confirm the change to your data. We confirmed at this time that the record would continue to show on your report for six years from the registration date.

If you wish to have accounts that were named as part of your IVA marked as settled, you’ll need to contact each of the lenders concerned with a copy of your certificate of discharge.

You should ask for these accounts to be marked as settled with the end date of the account showing as the discharge date of the IVA.

While I understand that your IVA has been removed from the public register, this information still forms a valid part of your credit history. IVAs are held by the credit reference agencies for a minimum of six years from the date of registration and for an extended period of they remain active for more than six years. This length of time was agreed by the Information Commissioner’s Office to be reasonable based on paragraph 6 in Sch 2 of the Data Protection Act. This section advises that the “processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed”. The six year time frame is also confirmed by the Information Commissioner’s Office in their Credit Explained leaflet.

For this reason, I’m afraid that Equifax aren’t in a position to uphold your complaint and remove this record from your report. I’m sorry that this isn’t the response that you’d hoped for but trust you understand our reasons for this. If you’re unhappy with the outcome of my review, you can ask the Financial Ombudsman Service to look into your complaint, free of charge, within the next six months. You’ll see their contact details below and can find out more about their complaint handling process in their leaflet your complaint and the ombudsman.

Financial Ombudsman Service
Exchange Tower
London
E14 9SR

Telephone: 0845 080 1800
E-mail: complaint.info@financial-ombudsman.org.uk
Website: http://www.financial-ombudsman.org.uk

Their response is inaccurate as the six year time frame is not confirmed in the ICO credit explained leaflet, what it actually says is:

Individual voluntary arrangement (IVA)

This may stay on your credit reference file for six years from the date of the arrangement (even if your IVA has been completed). If your IVA lasts longer than six years, it will remain on your credit reference file for the length of the arrangement

Note the use of the word “May” I contest this is purely because of the normal time of an IVA to complete, there is no account taken for early completion of IVA’s

Here is what the Data Protection Act states with regards to legitimate interests argument presented:

6.—(1) The processing is necessary for the purposes of legitimate interests
pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.

if you google “legitimate interest” and EU rules and working party 29 or WP29 you will see there has been EU discussion and publication on the use of this rule to be satisfied, more reading is recommended about the “balance of interest” use of relying on this clause, see here which also has a link to the full document.

Here is further reading on the ICO site :What ICO says about data processings

legitimate interests argument

I will keep you updated and if successful share the letter I sent.

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Do I really have to extend my IVA for 12 months because of equity in my property ?

This is covered in an earlier blog, click here to go there.

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Do I have to take a secured loan at the end of my IVA because of equity in my Property

This is covered in an earlier blog, click here to go there.

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Being threatened with Breach if don’t take secured loan in IVA

Do I really have to do 12 months further payments because I can’t release equity in my property ?

Do I really have to take a secured loan to release the equity in my property becaue I can’t re-mortgage – surely I can just do a 12 month extension on IVA payments ?

My IVA was not subject to this a) because I didn’t have a property to have equity in and b)even if I did, I have not seen one complaint about McCambridge Duffy on the forums, this is about other firms who seem to be trying to take their clients for a ride !

The topic is getting more and more exposure on the forum by people in IVA’s in other firms, so this is for the benefit of anyone who may find themselves threatened with a breach notice/IVA failure/ pressured for refusing to release equity by means of a secured loan other than a mortgage or indeed being told they must make 12 months further payments when perhaps they don’t have to.

on IVA forums website a number of people have been getting threatened with a breach if they don’t take a secure loan to release their property equity in the event they were unable to re-mortgage (which most people wont be able to do because there is an IVA on their credit file).

Some firms have been saying because the new protocol came in to effect in 2014 that allows for the use of secure loans to release equity then they are bound by it. In most cases that is not true and the it would appear it is their way of trying to ‘bamboozle (to deceive, dupe, hoodwink) you into thinking you have no choice, but the good news is, you probably do have a choice.

You are only bound by what is in your agreement and the protocols that were in effect when you signed up to your agreement, like when a credit card company changes terms & conditions, they will contact you advising the terms are changing, the same with your internet prices going up or gas prices etc, if you don’t like them you don’t have to accept them.

You are Not bound by the new Protocols or required to engage in any secure lending outside of a re-mortgage attempt UNLESS you have specifically agreed to be, even then if you did the company would have had to make each change very clear to you. So stick to your guns, if you have equity that is over the threshold amount (normally £5000 per your share of the property) then it may be better for you to just have the 12 month extension to your agreement, than a secured loan, don’t be be bullied or threatened with a breach notice if you don’t agree to accept a secured loan to release the equity.

Below is a template letter, please edit it as required and send to your IVA provider if they are trying to hassle you, if they still don’t agree take your response from them and share it on IVA forums and get some advice from others on the best way forward.

Good luck

Dear Sir/Madam,

Ref: My name, agreement number/reference, address & Date of Birth [both parties if interlocking IVA]

Your Ref: xxxxxx [include both parties if interlocking IVA]

I am in receipt of your letter dated xx/yy/xx

In your letter you have advised that I am in breach of my agreement because I have/ have not ; [remove if no breach issues]

On this occasion I disagree with your assessment which has resulted in your issuing a breach notice. [remove if no breach issued]

In an attempt to address your concerns and pre-emptying your requirements I am sending you:

2 x recent valuations of our property from estate agents
1 x valuation form the nationwide valuations website (or similar)
2/3 x copies of rejected re-mortgage applications.

[or whatever document your agreement says you must provide! but its a good start]

[Delete 1 or 2 as appropriate.]

1. You will see from the enclosed documents that the Equity we/I have in the property is below the £x,000 threshold value of my agreement which required equity release and as such my IVA should have/will cease on xx/yy/zz. [People on IVA forums will be able to help you calculate this if you are not sure – remember it is just the value of your share, if for example your agreement said £5000 and the was £9000 in your property between you and the wife this is only £4500 each and so below the requirement to trigger equity release – depending on the wording in your agreement – again, ask on the forums if not sure ]

Or

2. You will see for the enclosed documents that the Equity we/I have in the property is above the £x,000 threshold value of my agreement which therefore requires equity release.

The enclosed documents demonstrate we have been unable to release the equity through a re-mortgage. our IVA agreement is dated xx/yy/zz and states that it is bound the by the . I have reproduced these below for your reference:

[hopefully it only says re-mortgage or 12 months extension].>

As you can see the agreement and protocol we are bound by does not include the introduction of funds through secured lending outside of a re-mortgage and unfortunately there is no 3rd party able to provide funds through a re-mortgage which would be suitable for us and in our best interests. We do not believe our agreement or the protocols version xx.xx require us/me to engage in secured lending from a 3rd party in any other form than a mortgage.

I/we believe this is clearly demonstrated by the fact that the new protocols introduced in 2014 (which we are not bound by) specifically introduced secure lending outside of mortgages as a vehicle for property equity release.

You will also be aware we may not be forced/pressured into accepting any change to our IVA (or the terms and conditions that apply to it) if that change does not work of us or was not exlained clearly when asked to change to these terms [Delete this section if you have not agreed to change to new terms including secure lending or new 2014 protocol agreement]

As such and in order to comply with our written agreement and protocols we are bound by we are happy to:

either (delete 1 or 2 below)

1. Comply with section x.xx which states our IVA may be extended for a further 12 months in lieu of equity release via re-mortgaging. I/we trust you will agree this course of action is in compliance with our agreement and the protocols by which we are bound.

or

2. Receive your written confirmation that no equity release is required and our IVA will be moved to the completion phase on the xx/yy/zz (or should have been moved to completion phase on the xx/yy/zz and any extra monies mistakenly collected under the equity release clause which should not have been taken will be refunded to me/us immediately>

I/we would appreciate if you would confirm the above in writing and you will advise me what specific steps, if any, I/we need to take to facilitate this.

I/we also trust that the notice of breach has been rescinded. (If there was one, remove otherwise)

Failing your agreement, if you could kindly write to me with the specific sections in my signed IVA agreement and protocols version xx.yy which require me to take an alternative course of action. This is such that if required I can present this to 3rd parties such as my legal advisers and/or your IP regulators & Insolvency Service for their consideration as to the reasonableness of your request.

Kind Regards

Mr smith (by recorded delivery xx/yy/zz) and sent be email on xx/yy/zz

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Customer based review of IVA firms

I have come to the conclusion that there is a “gap” in the information available for when it comes to chosing a firm to help you setup your IVA.

There is a lot of information on the web about IVA’s and how they work, there are sites that detail the problems some people have when in them e.g. IVA.co.uk/forums and there is standard government information.

What there is not as far as I can see is public stats about each company, an easily catalogued document/database where you can read about how long it took to setup with each firm,many headaches people had along the way, how the various steps were handled, how supportive they were when things took a bad turn, what the PPI experience was like, how long did they wait for a completion certificate, typical pitfalls and things to watch out for with certain companies.

When you read the forums on IVA.co.uk the same companies come up time and time again, a company is trying to do this and that is it allowed ? Some of the things some of the companies are trying to do are certainly questionable in their efforts to make more profit, often when challenged with the advice of seasoned former IVA’ers they are helped with a good outcome. But for every person who find the forum and asks for help I wonder how many don’t and just end up paying too much or being committed to some ridiculous loan to get completion when they didn’t need to and could have been free of their IVA – we will probably never know as those with IVA’s keep it a closely guarded secret, it’s not something to be proud of so they will on the whole never share their experience, unlike other industries where people will share their experience openly all over social media etc

I thought on the whole one thing that might make people aware of these kinds of pitfalls might be having the information out there in the public domain so when they first type IVA help into a search engine they can get genuine feedback from real customers who have been there and have the T shirt.

To that end I have created a questionnaire that people can complete, the data is completely anonymous and I hope over time people will share their experiences to help those who come behind them not step on the same broken glass or at the very least be prepared for it.

I did start this topic on the very helpful site IVA.co.uk/forums but the topic has been removed and I do understand why, the site is sponsored by a couple of IVA firms.

The industry/public needs this data but IVA.co.uk is not the place for it.

The long term goal would be to setup a site for this and share the link on every IVA related site I can find, running costs of a site would be as low as £100 a year, I don’t have that at the moment but thought maybe an anonymous just giving page might be able to fund it from those who think its a good idea.

here is the link to review your IVA experience/firm anonymously.

Your personal view of the IVA firm you used

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Completion Certificate Received

Ah… that lovely Friday Feeling.

The Completion certificate dropped through the door today, Yipee…

So that closes an unpleasant chapter in our lives. In comparison to other people it was relatively short lived as we only only did a lump sum IVA, so from time of approval to completion certificate took just under 5 months. That time delay was primarily down to one of the creditors HMRC taking 4 months to get their claim in. Once that was received it took McCambridge Duffy only 9 working days (less than 2 weeks in time) to have the completion certificates on our doormat.

I can not praise McCambridge Duffy enough for their handling of our case from initial contact with Michael Peoples on the iva.co.uk website forums and the subsequent teams, specifically Danielle & Roisin for the handling of any email questions in the short period which were always responded to promptly.

I can hand on heart say a BIG THANKYOU to them for making what could have been a painful experience very painless. I know this sounds like an advert, but it is, we moan about bad stuff so we must praise great service too – but if you do want a company who treat you as more than just a number and continues its good customer service through the entire process, I can from my personal experience recommend them 100%.

Finally a big thank you to all forum contributors on the IVA forums for all your support and sharing your experiences and answering everyones’ questions, there is really no substitute for the this gold mine of information relating to IVA’s. I have lost count of the amount of people who have, through the forums and its’ respondents made progress with issues through the advice from others and helping correct issues when some of the other firms have tried things on with their clients which didn’t seem like cricket !

Now the next phase, cleaning up credit file & sending certificates to credit agencies and getting off that register !! 🙂

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One step closer….

One step closer to the finishing line.

After over 4 months HMRC have finally submitted their final claim to the IP so they can now move the IVA to the closure team. At least I won’t have to phone. HMRC every week now 🙂 That said I was building up quite a good relationship with the people in the HMRC voluntary arrangement department who all seemed helpful.

They said they now had all information back from all departments in HMRC and would email the IP that day, I let McCambridge Duffy know this via email and received a reply the next day confirming it had been received and would now be moved to the closure department which normally takes about 2 weeks to complete, subject to workload.

Can’t be soon enough to be able to close this chapter of my life……

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No post !

Well,

Since the chairmans report came through ( the formal paperwork that says its all agreed) I found myself on the insolvency register.

I don’t like being on that register and want to get my arse off it as soon as possible !

Nearly all of my creditors have confirmed the amounts they owe, but as I do a tax return one of them is HMRC, so as we have now entered the new tax year, I have for the first time in my life done my tax return super early, so that HMRC can confirm to my insolvency practitioners the amount I owe them.

Since the creditors meeting I have been in touch with McCambridge Duffy several times by email and always get a response the same day or the day after, I’m so pleased I chose them and so far they are living up to expectations, well. Probably beyond them to be honest.

As I opted for and creditors accepted the lump sum IVA (one payment and done and dusted, with the help of a loan through parents) I’m about to have my generous relatives send the payment off, then it’s wait and see how long it will take to close down the IVA, I hope it’s soon. I really would hate for anyone to stumble across my name on that register.

So reading books about several tycoons who have made it big in life, they all say they went bust at some point, at least I have got that bit out the way, now for the making millions bit….. Just need to come up with a business plan….how do you invent something so amazing as the “yellow sticky” and live off it for life ? 🙂

I find it odd that on certain days I have no post !! The postman must be wondering what’s going on because there is no longer bill after final demand and statutory notice pouring though the letter box, now that is a very nice feeling, though I am paranoid, I keep thinking the kids have picked the post up and hidden it somewhere !

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17.03.15 – A blog is born

I have never written a blog, thought about writing a blog, or indeed read other peoples’ blogs, yet here I am ……

Having never written a blog it may take me some time to “do it properly” or indeed I will never do it properly and you will find yourselves wondering,” what on earth is he on about”.

You may find my sense of humour inappropriate for something so serious, but, it is how I deal with certain situations, you willprobably also   witness me going off on tangents, ranting about unrelated things , if my blog isn’t your cup of tea please just move on rather than leaving an offensive message, thanks.

How do you make a blog interesting ?

How do you have a captive audience ?

What is the purpose of a blog ?

These are all things I shall be trying to find the answer to in the coming months, primarily because it’s time consuming, free and stops me going to the pub to socialise with friends who have lots of money and I have none, but, I can’t tell them that, because, I’m keeping up appearances.

Lets face it, hey everyone “I’m a financial disaster” …….tumbleweed moment, it’s a bit of a social grenade to just drop on a conversation, what would I say if someone said that to me ? Well, I actually know what I would say, “sh*t, me too!” and we could then proceed to play financial disaster top trumps over who had been the most stupid in different categories (c) – copyright patent pending….. 🙂

I will start with a short version of where we are now in our very early IVA journey, I will then see where we go from there, perhaps one day forward with how things are going and then perhaps another day with a flashback in time as to how we got to where we are, like a Hollywood script, so, any film producers out there – my minimum fee is rather high and a term of the contract will be payment is held by my agent in trust until Completion certificate is in my hand – I mean come on, why sell an amazing script if’s going to fall into the windfall category !! 😉

[scene change, and action, man walking down street in coat soaking wet on a cold wet UK autumn day]

About 6 months ago I realised we were in a bit of a financial mess so went along to see CAB, they confirmed the situation, as it was I hadn’t defaulted on any payments but zero percent interest rates were about to end and savings were all gone. I wanted to be proactive.

I was referred to one company who suggested IVA was the way forward, I had heard IVA’s but it seemed like a very scary prospect. Several emails and phone calls later with the CAB recommended firm had me much more versed in the world of IVA’s, but it was still a scary prospect, so I decided it was not for me, and instead opted for a DMP. I used stepchange to arrange the DMP,they were very good and free.

Fast forward 6 months and I had had a bit more time to think about things as the pressure was off with the DMP in place, the DMP was going to take an awfully long time to clear, more than 20 years, yes a lot of debt and littles excess per month.

I once again spoke to the firm I had done initially about IVA’s they were still keen to help. I decided to do a bit more research and discovered this site, what a educational gold mine ! Thanks so much for everyone that posts here. I soon discovered the company that were keen to help had a bit of a reputation for certain things so I started fishing around and reading more about various IVA solution companies/providers. The small hours of the night were taken up with each and everyone’s posts and personal battles and tribulation and success stories.

I decided to cast my net a little further and engaged in dialogue and email with 2 more firms who are present on this site which appeared to have good reviews along with the original firm which I now had a few reservations over, thank goodness I didn’t jump in feet first 6 months ago !

Through research, I discovered the “lump sum” IVA, could this be for me with the help of my ever forgiving helpful relatives, firm A said no, the pence in the pound was far too low and it wouldn’t be accepted and I wouldn’t be allowed to include x,y,z in my monthly I&E. Second firm didn’t greatly seem interested in this and third firm thought it would have a good chance of success for various reasons and my I&E seemed reasonable.

Reading about the emotional roller coaster everyone experiences over the 5-6 years I had to try this lump sum IVA, the firm could not have been more helpful in their understanding, assistance, drafting and redrafting of the proposal and what felt like a genuine partnership approach and the willingness to work together “get it right” and not stitch ourselves up for a failure. They took everything into account, not just the snapshot of our lives now, but how they will likely change over the next 5 years based on our family dynamic and unique employment situation. I felt like there was a real understanding and I’m being treated as a person, not just a case reference number.

2.5 weeks ago  they put the proposal forward to creditors and I found out yesterday it has been accepted, a one off lump sum IVA, such that we will not be bound by the 5 year requirements, just a maximum of x months as a maximum and shorter once the money is paid in and relevant paperwork and settlements processed.

And the firm and team who made all of this possible, McCambridge Duffy, I can’t extend my gratitude enough for their assistance in getting this far, a thoroughly professional , A first class service so far and all through Michael Peoples from the firm

 

My situation is no walk in the park, a lot of creditors, a non run of the mill situation and nothing seemed too difficult, despite me constant “just one more question” Columbo style approach to things, I’m somewhat thorough when it come to having an understanding of things before committing to them (obviously with the exception of ending up in a financial conundrum initially :-/) and they answered all my questions.

I appreciate nothing is done until it is done and I am yet to go through the settlement, completion, certificates, checking credit records process etc that I have read that everyone has a unique experience of, but I am optimistic the level of professionalism will continue.

Based on my personal experience so far I felt I must share this positive experience so far, if you’re considering an IVA, when speaking to your selection of firms to get a view I can genuinely recommend them as one worth consulting with who took the time to properly understand and help me with my situation (so far).

 

I am a cynic by nature and fully recognise that in this day and age that “sales” is an area that gets great focus to lure the customer, and thereafter the customer services can be a shocking experience, I don’t have that feeling at the moment, (I think I would have if I had gone with firm A and then found this site), I’m feeling positive….

I hope to be able to submit an IVA completed post in the not too distant future detailing the next segment of my IVA journey, hopefully, it all being a relatively short lived journey.

….Don’t you love those films that start with present day and then flashback to tell a story, you always say to yourself, I will remember its a flashback and I know the ending already….but you never do remember

…. To be continued.

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