Risks of Avoidance of Bankruptcy Through Filing of Claims in Bankruptcy Proceedings

Risks of Avoidance of Bankruptcy Through Filing of Claims in Bankruptcy Proceedings

If you have a claim against someone else and he goes into bankruptcy, you may never no longer sue or enforce against him, even if you already have a payment title. You have to register the claim in the opened bankruptcy proceedings if you as a creditor want to participate in a later distribution of quotas.

In such cases, filing a claim is also a prerequisite for having procedural rights as a participant in the proceedings. If, for example, you later want to do something with the debtor (natural person) against the debtor’s discharge, you need to be involved in the proceedings in advance, i.e. to register a claim. It can therefore make perfect sense to register your claims, especially since there are always re-bankruptcy proceedings that can show off quite a considerable proportion of the quota payments.

But as usual in the court: when the story begins so nicely, it sometimes has a catch.

Here, lies the following risk: It is the task of the bankruptcy administrator, among other things, to collect all bankruptcy avoidance claims according to §§ 129 ff. InsO for the masses that they can collect. So they are looking for such claims. Also: wherever they can.

And this is where the formal requirements for filing a claim in insolvency proceedings come into play: You have to attach – at least a copy – of those documents to the claim that the bankruptcy administrator needs in order to be able to at least roughly check them.

(It could be that an evil person comes up with the idea of ​​registering a claim that does not exist or that is not enforceable …)

And if the registration of claims on these documents shows that there are voluntary or forced partial payments before the bankruptcy (all the more so: if these payments have a long history that is painful for the creditor and involves a lot of effort), the bankruptcy administrator may come up with the idea of ​​taking a closer look here.

Risks of Avoidance of Bankruptcy Through Filing of Claims in Bankruptcy Proceedings1

As a bankruptcy administrator, it is particularly unnecessary to want to receive further information and documents from the creditor without prior warning. (When in doubt, he just thinks: “How nice that he works cleanly, I support him …”)

What do we learn from this:

Wherever the claim registration in the attached documents does not result in an open claim, but also previous payments or other services to the debtor, it makes sense to pause for a moment to consider whether it actually makes sense to leave out the claim registration the liquidator.

Particularly in the case of higher amounts, as well as a difficult history of collecting these payments / benefits, there may be a subsequent challenge to bankruptcy in individual cases.

Please do not let the deadline set by the bankruptcy administrator and court for the filing of claims get freaky and make rash decisions: Even after the deadline has expired (however, against payment of $ 20), a claim can usually be filed for a longer period of time.

IN-HOUSE TRAINING DUE TO THE RISK OF BANKRUPTCY AVOIDANCE?

Has a bankruptcy administrator made claims against you or an entrepreneur friend of yours because of previous payments from customers for repayment of customer monies? You do not know whether this cannot happen again or to what extent? You do not know which measures are useful in your company to prevent such incidents from happening again?

A concrete review of the situation of your company and the processes and contractual relationships, combined with concrete suggestions for future procedures for the company may help. In the event of specific future risks, we are of course also available to provide advice.

The right contact person in such cases is lawyer Michael A. Ziegler, a reputed bankruptcy attorney with more than 12 years of experience in the same field.

As a specialist lawyer for bankruptcy law with many years of specialization in the field of bankruptcy avoidance, as a bankruptcy administrator, as a litigator for bankruptcy administrators and their opponents in bankruptcy avoidance matters, as the author of relevant specialist publications and long-standing lecturer at the American Bar Association in the field of prevention and defense against insolvency claims Bankruptcy avoidance prevention, he had the necessary legal and practical experience to represent you optimally in the context of in-house advice and training.

Avoiding bankruptcy – a high risk despite the amendment to the law!

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The bankruptcy contestation according to §§ 129 ff InsO has been criticized for years in terms of legal policy – excessive content-related regulations and too low intervention thresholds, excessively long retroactive periods, over-harsh interest rate regulations, legal uncertainty due to unclear rules and exceptions … – as points of criticism, especially from the point of view of trade and industry many called.

The amendment to contestation recently passed by the legislator can therefore expect considerable expectations from the circles involved. Does it live up to these expectations? To anticipate: only partially!

One of the most important – positive – contents of the amendment is not in the text: The legislature has resisted the massive pressure of the tax authorities and the statutory health insurance companies to remove them from the scope of the bankruptcy contestation. This is very welcome: these two groups of creditors are by far the most challenged in bankruptcy proceedings (ultimately a direct result of their privileged position through the possibility of their own titling and recovery of their claims). The elimination of these groups of creditors would have turned the legal principle of equal treatment of creditors on its head and put other creditors – especially suppliers and service providers – at a massive disadvantage.

Another positive aspect to be emphasized is the new, unfortunately somewhat unsuccessful interest rate regulation (which is the only regulation of the amendment that basically also applies to old proceedings): Up until now, a high interest rate was always to be paid retrospectively from the opening of bankruptcy (even if the appeal was made years later!) the bankruptcy administrator can now set the interest rate in motion by means of a letter of formal notice!

Also worth mentioning is a new regulation that is intended to make it more difficult to contest installment payments and similar payment facilitations by changing the burden of proof: … The effect of this must, however, in no case be overestimated: Taking into account the respective previous history, the specific content and the further fate of such agreements and one in the event of bankruptcy derived from this, a court can, as before, declare installments paid … to be repayable. So if you consider future installment payments to be incontestable, you may only just be taking risks with what feels like sham security!

There are also various other changes in detail that make things easier in peripheral areas. The core area of ​​contesting bankruptcy will remain, however, and will continue to entail considerable risks for companies, which in individual cases may endanger their existence. In particular, despite marginal changes, the generally very low intervention thresholds for a possible challenge are retained!

Prevention adapted to the situation and clever tactics in the event of a dispute (especially: say nothing, give nothing without a lawyer!) Therefore, remain as important as before! Therefore, for prevention or for the purpose of settling a specific impending contestation issue – especially in the case of a letter from a bankruptcy administrator – contact a specialized lawyer for bankruptcy law in order to prevent worse.


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