Insolvency

BANKRUPTCY, WHAT IS THAT?

Insolvency literally means “unable to pay”. Insolvency law therefore concerns the arrangements you will have to deal with if your company, or a party with whom you do business, can no longer pay.

Broadly speaking, we distinguish four areas:

● Restructuring (adapting the structure in which the business is run);

● Reorganisation (an arrangement concerning the entity in question, e.g. bankruptcy, suspension of payments, arrangement with creditors);

● Advising the parties involved (the company itself, creditors, shareholders, directors or shareholders);

● Personal liability of natural persons involved in the company (liability of directors, de facto policymakers, supervisory directors, shareholders).

MY BANKRUPTCY HAS BEEN FILED, WHAT NOW?

Is your bankruptcy petition filed, then it is important to act quickly. From the moment that your bankruptcy has been applied for until the oral hearing is approximately 4 weeks.

First of all, you should ask yourself whether you can defend yourself. Possibly your bankruptcy is unavoidable. In this case, you can also choose to file for your own bankruptcy.

If you do put up a defence, it is important to choose the right course. It is very important what position you take. Although it may sound very reasonable, the wrong position can have major legal consequences.

In addition, you can prepare matters in case you are actually declared bankrupt. Things that may not be possible later. Have all decisions been taken correctly? Is the administration in order? What about the filing of the annual accounts? This analysis can also reveal that it might be wise to pay this creditor after all.

FILING FOR BANKRUPTCY OF A DEFAULTER

If you want to file for bankruptcy of a creditor, you should take into account a processing time of a little over four weeks. The court needs this time to summon the directors.

In addition, you must have a so-called support claim. This is a claim by a third party against your defaulter. Contrary to what many people think, this third party does not have to cooperate with the bankruptcy petition. In practice, however, you need this third party to prove that a support claim exists.

There must also be proof of your claim. If your claim is too uncertain, bankruptcy can be denied. In that case, it is necessary to first have the claim determined by the court (“obtaining a title”).

FILE FOR MY OWN BANKRUPTCY?

If you want to file for your own bankruptcy, you do not need an attorney-at-law. There is a form available that you can fill out yourself.

Think carefully about the consequences of your application. An attorney-at-law can help you with that. You may overlook things that have unpleasant consequences.

You must submit a number of documents with your application. These documents may not be older than one month:

● a copy of a valid identification document of the representative of the BV;

● a power of attorney from the representative, if he is not a director under the articles of association;

● an overview of income and debts (a balance sheet and the latest annual accounts);

● a list of creditors with their names and their claims;

● a list of debtors with their names and claims;

● an original extract from the trade register (also from the director himself if this is a BV);

● a certified copy of the articles of association;

● the original register of shareholders or a certified copy thereof;

● the original minutes of the AGM showing the instruction to the board to file for bankruptcy;

● an original extract from the trade register of the shareholders if they are a BV (also of the managing director himself if he is a BV).

PREPARING FOR BANKRUPTCY

Sometimes bankruptcy is unavoidable. Maybe you can still influence the moment your BV goes bankrupt.

During the time that your BV is not yet bankrupt, you can prepare for its bankruptcy.

In this regard the following has tob e taken into consideration:

● Taking stock of the risks of directors’ liability;

● Ensuring that the administration is in order;

● Filing the annual accounts?

● Collecting all decisions taken by the board and shareholders and if necessary put them in writing;

● Trying to bring about an arrangement with creditors;

● Collect as many outstanding invoices as possible.

At this stage, you can do little to change the facts. However, with good advice you may be able to influence the consequences of the facts. Will a trustee encounter a well-ordered administration and receive answers to all his questions? Or will he find a disorderly administration and much remains unclear? It is clear that the consequences for the administrator are enormous. A bankruptcy is always unpleasant: things do not turn out as you had hoped. Good preparation ensures that it does not become even more unpleasant.

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