If you have a claim against someone else and they go bankrupt, you should never continue to sue or enforce enforcement against them, even if you already have a title to payment. You have to register the claim in the opened insolvency proceedings if you, as a creditor, want to have a share in a later distribution of quotas.
In such cases, the filing of 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 about the debtor (natural person) against the discharge of his residual debt, you need to be a party to the proceedings, i.e., the claim registration. So it can make sense to register your claims, especially since there are always re-insolvency proceedings and portfolio recovery lawsuit that can boast of very significant proportionate quota payments.
But as usual in law: when the story starts so beautifully, it sometimes has a catch.
Here lies the following risk: The task of the bankruptcy administrator is, among other things, to collect all bankruptcy avoidance claims according to §§ 129 ff. for the mass, which they can collect. So they look for such claims. Also: where they can.
And this is where the formal requirements for filing a claim in bankruptcy proceedings come into play: You have to attach – at least a copy – those documents to the claim in the claim registration that the bankruptcy administrator needs in order to be able to at least check them roughly.
(It could be that a bad person comes up with the idea of registering a claim that does not exist or that is not enforceable…)
And if the registration of the claim on these documents shows that there were voluntary or forced partial payments before the bankruptcy (especially if these payments have a long and painful history with a lot of effort for the creditor), the bankruptcy administrator can get the idea to take a closer look here.
It is particularly rude then, as an bankruptcy administrator, to want to get further information and documents from the creditor without 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 and think about whether it actually makes sense to omit the claim registration the bankruptcy administrator.
Especially in the case of higher amounts, as well as in the case of a difficult history of collecting these payments/services, in individual cases there may be a subsequent challenge to bankruptcy.
Please do not let the deadline set by the bankruptcy administrator and the court for filing a claim fool you and make an ill-considered decision: Even after the deadline has expired (but for a fee of EUR 20) it is usually possible to file a claim for a longer period of time.
We would be happy to support you in checking whether registering a claim makes sense in a specific case or whether it is just a risk.
On the sense and nonsense of “letting the pig out” on defaulting debtors or: unnecessarily increased risks of contesting bankruptcy!
Imagine your customer doesn’t pay. (Cheeky! You have duly delivered.) And then he puts you off and comforts you again and again and you get angrier and angrier. What could be more obvious than to “let it all out” verbally or in writing and to make the malice of his actions once again clear to him, to threaten him with costs and interest, title, lawsuit, enforcement, application for bankruptcy, criminal complaint, application for a trade ban, delivery stop and other things .
After all, it is well known that whoever shouts the loudest and puts the most pressure on gets something. So you put pressure on, verbally, in writing… Often you even get your money.
And most of the time nothing happens and you can happily keep your money.
However, it will be different if the debtor goes bankrupt afterwards. Then his bankruptcy administrator will try to get the money back from you using the legal rules of contesting bankruptcy (§§ 129 ff.). And this is an area of law with completely different rules that completely contradict common sense.
In the above case, it is actually like in criminal law: “Everything you say to the debtor can later be used against you.” Virtually everything that is usually said or (even worse) written in such situations can be used by the bankruptcy administrator to substantiate and prove his bankruptcy avoidance claims:
- The accusation that the third installment agreement is already bursting ….
- Your knowledge that he can’t pay his bill right now…
- Your threat of filing for bankruptcy or enforcement…
What should I do?
All statements of this kind in written form are particularly dangerous – you are handing the later bankruptcy administrator the evidence on a silver platter. But verbal statements of this kind can also be slapped around your head later: Imagine the purchasing manager who you have threatened emails internally to the accounting department that they should pay immediately because of a threatened application for bankruptcy or a delivery stop – and the email later comes to the attention of the bankruptcy administrator.
In any case, oral is better than written.
In the long run, only one thing helps: deal specifically with the risks of contesting bankruptcy and have the specific risks and countermeasures existing in your company checked. Our specialist on the subject of bankruptcy avoidance law, Mr. Mike Ziegler, will be happy to advise you. We are also happy to offer you in-house training courses for your employees, taking into account your specific company situation and specific risks.
“Attorney Debt Fighters” urges you to contact our professional bankruptcy attorneys for legal advices and suggestions. We will be more than happy to serve you.