Atten\u00adtion, insol\u00adven\u00adcy! Have you ever expe\u00adri\u00adenced this? Just a moment ago you were a nor\u00admal cred\u00adi\u00adtor and (pub\u00adlic) client and had a nor\u00admal claim against a com\u00adpa\u00adny, your con\u00adtrac\u00adtor. But sud\u00adden\u00adly the signs change. The nor\u00admal com\u00adpa\u00adny becomes an insol\u00adven\u00adcy debtor. And you become an insol\u00adven\u00adcy cred\u00adi\u00adtor. I cov\u00ader how insol\u00adven\u00adcy law affects your rela\u00adtion\u00adship as a client with bank\u00adrupt con\u00adtrac\u00adtors in sev\u00ader\u00adal posts. In this first arti\u00adcle, I describe the process of open\u00ading insol\u00adven\u00adcy pro\u00adceed\u00adings and, in par\u00adtic\u00adu\u00adlar, the rea\u00adsons for insol\u00adven\u00adcy and the cred\u00adi\u00adtor\u2019s options for exert\u00ading influ\u00adence at this stage. <\/p>\n
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Com\u00admer\u00adcial con\u00adtrac\u00adtors will work for you and your home. They may be insol\u00advent or over-indebt\u00aded. You may not sus\u00adpect any\u00adthing of the sort. Your con\u00adtrac\u00adtor is no longer able to per\u00adform \u2014 and you are wait\u00ading for him to deliv\u00ader his con\u00adtrac\u00adtu\u00adal\u00adly owed ser\u00advices. But noth\u00ading hap\u00adpens. He does\u00adn\u2019t get in touch any\u00admore, lets him\u00adself be denied. You ask your\u00adself what you can do. <\/p>\n
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First of all, it is impor\u00adtant to visu\u00adal\u00adize the process from the cred\u00adi\u00adtor\u2019s point of view. It all starts with the insol\u00adven\u00adcy peti\u00adtion. This is received by the insol\u00adven\u00adcy court. The court then exam\u00adines whether the insol\u00adven\u00adcy pro\u00adceed\u00adings can be opened. We are in the insol\u00adven\u00adcy open\u00ading pro\u00adceed\u00adings, i.e. the peri\u00adod before the open\u00ading of the insol\u00adven\u00adcy pro\u00adceed\u00adings. The open\u00ading of insol\u00adven\u00adcy pro\u00adceed\u00adings is basi\u00adcal\u00adly the case under two con\u00addi\u00adtions. First, there must be a rea\u00adson for insol\u00adven\u00adcy (insol\u00adven\u00adcy or overindebt\u00aded\u00adness). Sec\u00adond, there must be suf\u00adfi\u00adcient insol\u00adven\u00adcy assets to cov\u00ader at least the costs of the insol\u00adven\u00adcy pro\u00adceed\u00adings. <\/p>\n
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The cred\u00adi\u00adtor can already be involved in the insol\u00adven\u00adcy pro\u00adceed\u00adings. This is when he files the insol\u00adven\u00adcy peti\u00adtion. To do so, they must, among oth\u00ader things, demon\u00adstrate a cred\u00adi\u00adble inter\u00adest in legal pro\u00adtec\u00adtion. This requires two things in par\u00adtic\u00adu\u00adlar: first\u00adly, the pre\u00adsen\u00adta\u00adtion of a rea\u00adson for insol\u00adven\u00adcy, i.e. the cred\u00adi\u00adble demon\u00adstra\u00adtion of insol\u00adven\u00adcy or overindebt\u00aded\u00adness. Sec\u00adond\u00adly, as a cred\u00adi\u00adtor, you must also show cred\u00adi\u00adbly that you have a due, enforce\u00adable claim that has not been met. <\/p>\n
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What you should not do as a cred\u00adi\u00adtor: use the insol\u00adven\u00adcy peti\u00adtion as a means of pres\u00adsure or abuse it for oth\u00ader rea\u00adsons. Insol\u00adven\u00adcy serves the equal sat\u00adis\u00adfac\u00adtion of all cred\u00adi\u00adtors and should not be used to pro\u00admote par\u00adtic\u00adu\u00adlar inter\u00adests. <\/p>\n
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There are var\u00adi\u00adous rea\u00adsons why pub\u00adlic clients in par\u00adtic\u00adu\u00adlar are well advised to file for insol\u00adven\u00adcy if the con\u00addi\u00adtions for doing so are met. If you need sup\u00adport for this \u2014 there are some pit\u00adfalls \u2014 feel free to con\u00adtact us. We will do it for you. <\/p>\n
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An impor\u00adtant point when fil\u00ading an insol\u00adven\u00adcy peti\u00adtion is always who bears the costs if the peti\u00adtion is set\u00adtled or the cred\u00adi\u00adtor with\u00addraws the insol\u00adven\u00adcy peti\u00adtion. First of all, please be aware that if you file the peti\u00adtion and are suc\u00adcess\u00adful, you are not oblig\u00aded to bear the costs. Instead, the insol\u00adven\u00adcy estate bears the costs of the pro\u00adceed\u00adings. <\/p>\n
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In all oth\u00ader cas\u00ades, the legal sit\u00adu\u00ada\u00adtion is less clear. This is because Sec\u00adtion 31 (2) of the Court Costs Act pro\u00advides for a so-called sec\u00adondary bur\u00adden of bear\u00ading costs on the peti\u00adtion\u00ading cred\u00adi\u00adtor. This can become rel\u00ade\u00advant, for exam\u00adple, if you as a cred\u00adi\u00adtor with\u00addraw the insol\u00adven\u00adcy peti\u00adtion or the insol\u00adven\u00adcy peti\u00adtion is reject\u00aded for lack of assets. <\/p>\n
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The law rec\u00adog\u00adnizes three rea\u00adsons for open\u00ading insol\u00adven\u00adcy pro\u00adceed\u00adings, name\u00adly insol\u00adven\u00adcy, overindebt\u00aded\u00adness and immi\u00adnent insol\u00adven\u00adcy. As a cred\u00adi\u00adtor fil\u00ading an insol\u00adven\u00adcy peti\u00adtion, you must sub\u00adstan\u00adti\u00adate at least one insol\u00adven\u00adcy ground with your peti\u00adtion. Oth\u00ader\u00adwise, your appli\u00adca\u00adtion will be reject\u00aded as inad\u00admis\u00adsi\u00adble. How\u00adev\u00ader, the actu\u00adal exis\u00adtence of the rea\u00adson does not depend on the time of fil\u00ading the appli\u00adca\u00adtion, but on the time of the court deci\u00adsion. <\/p>\n
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A debtor is insol\u00advent if he is unable to meet his due pay\u00adment oblig\u00ada\u00adtions. In this respect, it is by no means nec\u00ades\u00adsary that your debtor no longer has any liq\u00aduid\u00adi\u00adty at all, i.e. can no longer make any pay\u00adments. On the con\u00adtrary, insol\u00adven\u00adcy is already to be assumed in prin\u00adci\u00adple if the debtor is not in a posi\u00adtion to set\u00adtle at least 90% of his total lia\u00adbil\u00adi\u00adties due with\u00adin three weeks. In oth\u00ader words, if there is a gap of 10% for a peri\u00adod of more than three weeks, insol\u00adven\u00adcy must be assumed in most cas\u00ades. Whether such a case exists can usu\u00adal\u00adly only be deter\u00admined by means of a so-called liq\u00aduid\u00adi\u00adty bal\u00adance. The cred\u00adi\u00adtor can hard\u00adly ever draw this up. He usu\u00adal\u00adly does not have the nec\u00ades\u00adsary insight into the inter\u00adnal details of the debtor com\u00adpa\u00adny. <\/p>\n
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For you as (pub\u00adlic) client, this means that you can only decide on the basis of indi\u00adca\u00adtions whether insol\u00adven\u00adcy exists or not. Par\u00adtic\u00adu\u00adlar\u00adly in the case of pub\u00adlic projects, the fol\u00adlow\u00ading indi\u00adca\u00adtions \u2014 which are not exhaus\u00adtive \u2014 are rel\u00ade\u00advant: <\/p>\n
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Let us now turn to the sec\u00adond impor\u00adtant rea\u00adson for insol\u00adven\u00adcy, overindebt\u00aded\u00adness. Overindebt\u00aded\u00adness exists when the debtor\u2019s assets no longer cov\u00ader its lia\u00adbil\u00adi\u00adties. First of all, a so-called going con\u00adcern prog\u00adno\u00adsis must be drawn up. A finan\u00adcial plan is drawn up on the basis of a busi\u00adness con\u00adcept, in which efforts to restruc\u00adture the busi\u00adness are also described. This shows the finan\u00adcial devel\u00adop\u00adment of the com\u00adpa\u00adny in the fore\u00adcast peri\u00adod. The going con\u00adcern fore\u00adcast is then derived on this basis. The deci\u00adsive fac\u00adtor in this respect is cred\u00adi\u00adtor pro\u00adtec\u00adtion, i.e. the ques\u00adtion of whether the com\u00adpa\u00adny will gen\u00ader\u00adate sur\u00adplus\u00ades and is there\u00adfore viable. <\/p>\n
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The third rea\u00adson for insol\u00adven\u00adcy is immi\u00adnent insol\u00adven\u00adcy. In this respect, it is impor\u00adtant for the cred\u00adi\u00adtor that, under cur\u00adrent law, he can\u00adnot base an insol\u00adven\u00adcy peti\u00adtion on this ground for insol\u00adven\u00adcy. <\/p>\n
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The court may order pro\u00adtec\u00adtive mea\u00adsures for the pur\u00adpose of cred\u00adi\u00adtor pro\u00adtec\u00adtion and equal treat\u00adment of all cred\u00adi\u00adtors if the insol\u00adven\u00adcy peti\u00adtion is admis\u00adsi\u00adble. This means, for exam\u00adple: The court may appoint a pre\u00adlim\u00adi\u00adnary insol\u00adven\u00adcy admin\u00adis\u00adtra\u00adtor, set up a pre\u00adlim\u00adi\u00adnary cred\u00adi\u00adtors\u2019 com\u00admit\u00adtee, impose a gen\u00ader\u00adal ban on dis\u00adpos\u00adal on the debtor and impose a ban on enforce\u00adment. For such mea\u00adsures to be tak\u00aden, the court must deem the cred\u00adi\u00adtor\u2019s insol\u00adven\u00adcy peti\u00adtion admis\u00adsi\u00adble. This requires the asser\u00adtion and sub\u00adstan\u00adti\u00ada\u00adtion of a cred\u00adi\u00adtor claim and a rea\u00adson for insol\u00adven\u00adcy. <\/p>\n
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Some\u00adtimes the cred\u00adi\u00adtors are also con\u00adtact\u00aded by an expert appoint\u00aded by the court. The task of the expert is to con\u00adclu\u00adsive\u00adly estab\u00adlish the exis\u00adtence of a rea\u00adson for insol\u00adven\u00adcy, but also to exam\u00adine whether the insol\u00adven\u00adcy estate cov\u00aders the costs of the pro\u00adceed\u00adings and whether there are prospects of con\u00adtin\u00adu\u00ading the busi\u00adness. Some\u00adtimes he turns to the cred\u00adi\u00adtors for infor\u00adma\u00adtion, and it may be use\u00adful for you as a cred\u00adi\u00adtor to point out to him, for exam\u00adple, cer\u00adtain own\u00ader\u00adship rela\u00adtion\u00adships or the like. This is because it is quite com\u00admon for the sub\u00adse\u00adquent\u00adly appoint\u00aded pre\u00adlim\u00adi\u00adnary insol\u00adven\u00adcy admin\u00adis\u00adtra\u00adtor (who is often iden\u00adti\u00adcal to the expert) to make mis\u00adtakes when deal\u00ading with the cred\u00adi\u00adtor\u2019s rights to seg\u00adre\u00adga\u00adtion and sep\u00ada\u00adra\u00adtion. It may be pos\u00adsi\u00adble to avoid mis\u00adcon\u00adcep\u00adtions here by giv\u00ading the cred\u00adi\u00adtor sen\u00adsi\u00adble infor\u00adma\u00adtion. <\/p>\n
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Prob\u00ada\u00adbly the most impor\u00adtant safe\u00adguard\u00ading mea\u00adsure is the order of pro\u00advi\u00adsion\u00adal insol\u00adven\u00adcy admin\u00adis\u00adtra\u00adtion and the appoint\u00adment of a pro\u00advi\u00adsion\u00adal insol\u00adven\u00adcy admin\u00adis\u00adtra\u00adtor. For the cred\u00adi\u00adtor, the first deci\u00adsive fac\u00adtor is whether a strong or weak pre\u00adlim\u00adi\u00adnary insol\u00adven\u00adcy admin\u00adis\u00adtra\u00adtion has been ordered. This is because it depends on this whether the pro\u00advi\u00adsion\u00adal insol\u00adven\u00adcy admin\u00adis\u00adtra\u00adtor has cre\u00adat\u00aded debts to the insol\u00adven\u00adcy estate when insol\u00adven\u00adcy pro\u00adceed\u00adings are sub\u00adse\u00adquent\u00adly opened or whether he has only cre\u00adat\u00aded fur\u00adther insol\u00adven\u00adcy claims. If, as is often the case, there is a weak pre\u00adlim\u00adi\u00adnary insol\u00adven\u00adcy admin\u00adis\u00adtra\u00adtion in con\u00adjunc\u00adtion with a gen\u00ader\u00adal reser\u00adva\u00adtion of con\u00adsent, the cred\u00adi\u00adtor should ensure that the pre\u00adlim\u00adi\u00adnary insol\u00adven\u00adcy admin\u00adis\u00adtra\u00adtor con\u00adsents to the debtor\u2019s legal trans\u00adac\u00adtions in a doc\u00adu\u00adment\u00aded man\u00adner. It is also advis\u00adable from the point of view of the prin\u00adci\u00adpal (i.e. customer\/contractor) in most cas\u00ades (the indi\u00advid\u00adual case decides!) to no longer make advance pay\u00adments. <\/p>\n
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The secu\u00adri\u00adty mea\u00adsures of the insol\u00adven\u00adcy court inter\u00advene in the legal posi\u00adtion of the cred\u00adi\u00adtor in many ways. He is well advised to know and under\u00adstand them and to act accord\u00ading\u00adly. <\/p>\n
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*This legal tip is not a sub\u00adsti\u00adtute for legal advice in indi\u00advid\u00adual cas\u00ades. By its very nature, it is incom\u00adplete, nor is it spe\u00adcif\u00adic to your case, and it also rep\u00adre\u00adsents a snap\u00adshot in time, as legal prin\u00adci\u00adples and case law change over time. It can\u00adnot and does not cov\u00ader all con\u00adceiv\u00adable con\u00adstel\u00adla\u00adtions, serves enter\u00adtain\u00adment and ini\u00adtial ori\u00aden\u00adta\u00adtion pur\u00adpos\u00ades and is intend\u00aded to moti\u00advate you to clar\u00adi\u00adfy legal issues at an ear\u00adly stage, but not to dis\u00adcour\u00adage you from doing so. <\/span><\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Atten\u00adtion, insol\u00adven\u00adcy! Have you ever expe\u00adri\u00adenced this? Just a moment ago you were a nor\u00admal cred\u00adi\u00adtor and (pub\u00adlic) client and had a nor\u00admal claim against a com\u00adpa\u00adny, your con\u00adtrac\u00adtor. But sud\u00adden\u00adly the signs change. The nor\u00admal com\u00adpa\u00adny becomes an insol\u00adven\u00adcy debtor. And you become an insol\u00adven\u00adcy cred\u00adi\u00adtor. I cov\u00ader how insol\u00adven\u00adcy law affects your rela\u00adtion\u00adship [\u2026]<\/p>\n","protected":false},"author":4,"featured_media":15923,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"wp_typography_post_enhancements_disabled":false,"footnotes":""},"categories":[],"tags":[],"team_kategorien":[],"class_list":["post-16015","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"acf":[],"_links":{"self":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/posts\/16015","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/comments?post=16015"}],"version-history":[{"count":1,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/posts\/16015\/revisions"}],"predecessor-version":[{"id":16016,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/posts\/16015\/revisions\/16016"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/media\/15923"}],"wp:attachment":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/media?parent=16015"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/categories?post=16015"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/tags?post=16015"},{"taxonomy":"team_kategorien","embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/team_kategorien?post=16015"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}