Creditors

A bankruptcy petition can often be a useful and relatively cheap collection tool for compelling payment from your debtors. In this respect, acting strategically is almost always necessary. We know all the ins and outs of the process of filing a bankruptcy petition as a means of collecting debts.

In the unlikely event that payment is not made and a bankruptcy actually ensues, then you’ll almost certainly know that there will be practically nothing more to get at that time. 

All bankruptcy orders are made “in the interests of all the creditors”. This sounds nice, but in most cases the creditors (such as suppliers, employees and landlords) receive absolutely nothing. However, we can advise you how you can reduce your losses and how you can still try to probably get partial payment, whether through the retrieval of delivered goods or by holding directors liable.

Suppliers

As a rule, suppliers come off worst and unfairly so, while it is precisely this group which has a number of powerful weapons at its disposal. One only has to know how they must be correctly used and applied. We can assist you in this. The following can all be invoked, for instance: a retention of title, the right of complaint, the right of retention and directors’ liability. 

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Holders of security interests

If you already have a special position, for example through a pledge or mortgage right, or a surety or a guarantee, we can advise you how you can exercise this right to the fullest.

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Employees

Employees have no protection during bankruptcy, because the normal protection against dismissal does not apply in bankruptcy situations. The bankruptcy trustee shall almost always dismiss staff because there is no more liquidity to pay salaries. For many employees of a bankrupt employer, the fact that they will be paid (part of) their salary arrears and notice pay by the Employee Insurance Implementing Agency (UWV) is of little comfort.  People always lose their jobs and must look for other work.

If an employer has only or has chiefly filed for bankruptcy (or caused a petition to be so filed) to get rid of their staff in order to relaunch, this could constitute an abuse of bankruptcy law. Employees can rely on this to oppose the bankruptcy by filing a third-party objection which can lead to the annulment of the bankruptcy (and directors’ liability). There are many problems associated with this complex doctrine and it is still evolving rapidly. We regularly guide (groups of) employees through the filing of third-party objections against employers’ bankruptcies.

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Landlords

Currently, as a landlord, you cannot avoid taking precautionary measures in case your tenant goes bankrupt. The combination of lease and tenancy agreement law and bankruptcy law also causes many complications. In this connection, landlords can encounter numerous problems such as disputes concerning the termination or the rescission of the lease, damage to leased property ascertained on its surrender, loss of rent, estate debt and the enforcement of bank guarantees and surety bonds. We can advise you on how you should deal with your tenant’s bankruptcy, in the light of any precautions you may have taken. Naturally, we can also advise you concerning the taking of the above-mentioned measures for reasons of caution, which can continue in the event of your tenant’s bankruptcy (sureties, penalty clauses, bank guarantees, concern guarantees, etc.).

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Liability of directors and bankruptcy trustees

Directors can also be directly liable to the company’s creditors. For example, if a company director enters into commitments on the company’s behalf, when they knew or reasonably ought to have known that the company could not fulfil its obligations or could not do so within a reasonable timeframe and would not provide any redress for the losses which the creditor would sustain for this reason (the so-called “Beklamel standard”). The above-mentioned basis of liability can be successfully invoked by creditors in many bankruptcies. Obviously there are still a number of other bases of liability on which a director can be held personally liable for the loss you have directly suffered as a creditor. We can make a realistic assessment of these and take action if necessary.

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Finally, bankruptcy trustees can make mistakes in the performance of their tasks as part of the winding up of a bankrupt entity. In this connection, they can be liable in their capacity as bankruptcy trustee (which results in estate debt), but also in private. However, it is not easy for trustees to become personally liable, because trustees possess considerable discretion in the performance of their tasks. We know precisely how far a trustee can go and if specific acts are acceptable or not, so we can give rapid and accurate advice in this respect.

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In a nutshell:

  • Bankruptcy petitions;
  • Retention of title, right of retention and right of complaint (for suppliers);
  • Enforcement of security interests (pledges and mortgages, sureties, guarantees);
  • Third-party objections by employees (abuse of bankruptcy law);
  • Assistance to landlords who have te deal with bankrupt tenants;
  • Directors' liability and bankruptcy trustees' liability.