If the employer goes bankrupt, ins. In the event of immediate or subsequent business closure, there is often a de facto stagnation with regard to the processing of the bankruptcy. This can lead employees to abandon outstanding wage claims for the time being. (“The insolvency administrator will certainly take care of it …”). Likewise, applications for bankruptcy payments are often left lying around and not submitted to the office immediately.
This is humanly understandable but legally difficult:
In individual cases, claims against the bankruptcy estate can therefore expire or expire very quickly within a few months. Or registration for bankruptcy proceedings is so late and hesitant that you can no longer participate in the proceedings (this does not happen when the deadline in the first letter from the administrator has expired!)
Since in bankruptcy proceedings (even if it looks really bad at first), reasonable odds are often the result afterward, you should not give up too early here either. Contact your lawyer at an early stage so that he can examine your chances of possible action and deadlines to be observed and effectively represent your interests.
The Federal Court of Justice Strengthens the Rights of Aggrieved Creditors if the Company Is Deliberately Continued Despite a Recognized Bankruptcy
The Federal Court of Justice strengthens the rights of aggrieved creditors in the event of an intentional continuation of the company despite a recognized bankruptcy – judgment BGH II ZR 164/20, the judgment of 07/27/2021
For creditors, the situation is very annoying that their contractual partner is unrecognized, and bankruptcy (with a corresponding legal form such as private limited) is required to file for bankruptcy. That’s where you need portfolio recovery lawsuit, but that the contractual partner is deliberately delayed as long as possible, although the end of the company is recognized as inevitable. In such a case, the Federal Court of Justice held a conviction of the managing director of such a private limited for personal payment for damages and based this on the claim basis of § 826 BGB (“intentional tortious damage”).
In the present case, a customer of a facade company in the legal form of a private limited company (which was externally undetected and already insolvent, what its managing director knew …) had started a legal dispute that ultimately brought nothing to the customer due to the later insolvency of the facade company. On this basis, the Federal Court of Justice sentenced the managing director to reimburse the costs of the legal dispute. This decision is to be welcomed, as it contrasts the bad habit of some companies in crisis to postpone claims through abusive legal disputes (necessary lawsuits against the companies) in the crisis of the company, in contrast to a high personal risk for the managing director working on the company side.
In addition to the criminal law risk of late filing for insolvency, the risk of personal financial claims must be taken into account to a greater extent.
Debt Recovery, Avoidance of Bankruptcy and Legal Liability
How you can possibly keep yourself harmless as an opponent and victim of a bankruptcy challenge:
- Claims of insolvency administrators in accordance with §§ 129 for insolvency avoidance are mostly for the repayment of amounts paid.
- Often the payments of the future debtor (before his insolvency) to the creditor as the later contestant against the insolvency administrator are preceded by collections of a pre-judicial and judicial nature as well as foreclosures.
- To simplify matters, the following applies here: The faster the creditor and his lawyer act, the higher the chance of obtaining funds by way of voluntary payment or foreclosure, and the lower the risk of later insolvency contestation.
- In addition, the specific manner in which the debt is collected often decides whether a later insolvency administrator of the debtor can subsequently challenge the bankruptcy.
- Too slow titillation and enforcement or the wrong way in which funds are recovered (not taking into account the possibilities of how to minimize or eliminate the risk of insolvency avoidance) can lead to unnecessary insolvency challenges.
At the same time, this results in a liability risk for lawyers who act too slowly or incorrectly. According to the rulings of the Federal Court of Justice, you are required to avoid unnecessary delays in collection, titling and enforcement and to take into account procedures that minimize the risk of contestation in the interests of the client.
Unnecessarily Increased Risk of Insolvency Avoidance!
Imagine if your customer doesn’t pay. (Cheek! You delivered properly.) And then put off and piss you off again and again and you get angrier and angrier. What could be more natural than verbally or in writing to “let the pig out” and to clearly show him the malice of his actions once again, threatening costs and interest, titling, lawsuits, enforcement, filing for insolvency, criminal charges, applications for a trade ban, delivery stop and other things? After all, it is well known that someone who screams the loudest and applies the best pressure always 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.
It is different, however, if the debtor goes into bankruptcy afterward. Then his insolvency administrator will try to get the money back from you via the legal rules for avoiding insolvency (§§ 129 ff. BGB). And that 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.”
Practically everything that is usually said or (worse) written in such situations can be used by the insolvency administrator to justify and prove his insolvency avoidance claims:
- The accusation that the third installment payment agreement is already bursting….
- Your knowledge that he is currently unable to pay his bill …
- Your threat of bankruptcy or enforcement …
What should I do?
All statements of this kind in written form are particularly dangerous – this is how you serve the later insolvency administrator the evidence on a silver platter. Oral statements of this kind can also be thrown around the ears later: Imagine the purchasing manager whom you threatened to email the accounting department internally, you should pay immediately because of a threatened bankruptcy petition or delivery stop – and the email comes to the insolvency administrator’s eyes later.
In any case, oral is better than writing.
Only one thing helps in the long run: Concretely deal with the risks of contesting insolvency and have the specific risks and countermeasures existing in your company checked.
Our specialist on the subject of bankruptcy avoidance law, Attorney Michael A. Ziegler, will be happy to advise you.