Filing for bankruptcy
We are aware that filing for bankruptcy is never a fun time. But in some cases, there is no other way out. To be declared bankrupt yourself or to have someone declared bankrupt by the court, several steps need to be taken. A first step is to file for bankruptcy yourself.
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Why should I declare someone bankrupt?
As a creditor, it is sometimes wise to get there early. If you get signals that you will no longer get your money or that the chances of this happening are getting smaller and smaller, bankruptcy can ensure that you will still get some of your money back. If you do not, there is a real chance you will never see the investment you have made.
Why file for bankruptcy yourself?
If you have too much debt you see no other way out then filing for bankruptcy yourself may be the only way out. A particularly unpleasant situation with consequences for the upcoming period. For this reason, you want to inform yourself well about the possibilities and consequences of filing for bankruptcy.
Who may file for bankruptcy?
There are various individuals and agencies that may file or endorse a bankruptcy petition. In all cases, it means that financial obligations can no longer be met. The result is bankruptcy declared by the court.
Filing your own bankruptcy petition
You can no longer manage to pay your debts and financially you are at rock bottom. If you see no further way out in the short to medium term, filing your own bankruptcy petition is possible. In this, the court is ultimately the body that decides whether you actually go bankrupt depending on your situation. We can guide you through this. If you are interested in this service, please contact us.
Filing for bankruptcy by creditors
Are you with two or more creditors? Does the person or company involved have at least two debts, one of which is due? Has the debtor stopped paying and are you suffering as a result? Then filing for bankruptcy is a good step. You should hire a lawyer who will work with you to file an application with the court. If the debtor is eventually declared bankrupt, it is up to the trustee to determine how much you will receive from the bankruptcy estate.
Ultimately, it is always the court that decides whether to grant the bankruptcy petition. If the creditors are vindicated, the debts can no longer be paid and this is demonstrable, the court will declare bankruptcy. This can also be done at your own request. This procedure always falls under civil law at court. You can file for bankruptcy on your own request without a lawyer, but if you file for bankruptcy on behalf of someone else, you should always hire a lawyer.
The bankruptcy application process
When bankruptcy is filed or forced, below is the regular procedure of bankruptcy.
- The procedure starts when one of the 4 parties mentioned above files for bankruptcy with the court.
- The bankruptcy is declared by the court, which appoints a receiver and a supervisory judge.
- The bankrupt automatically loses the disposal and management of the assets (private or of the company)
- The receiver acts in place of the declared bankrupt, who then becomes incapacitated.
- The receiver manages the liquidation of the bankrupt’s estate.
- The trustee also looks after the interests of creditors.
- The receiver ensures the publication of the judgment by registration with
- the bankruptcy registry and chamber of commerce
- the advertisement in the Official Gazette
- the advertisement in a national newspaper
- He examines the estate and tries to determine what the assets and debts of the bankrupt are.
- The business association takes over all salary obligations from the bankruptcy date. In exceptional cases, it may also take over (part of) salary arrears.
- The trustee, in cooperation with the supervisory judge, prepares the verification meetings.
- If necessary, he dismisses staff members and sells any remaining assets (goods, stocks, cars and real estate). In any case, employees with salary claims take precedence over all unsecured creditors.
- If he identifies mismanagement or fraudulent behaviour, he will take the appropriate measures.
- The supervisory judge supervises the management and liquidation of the bankruptcy estate and the actions of the bankruptcy trustee.
- For certain activities, the receiver must request permission from the supervisory judge (e.g.: dismissal of staff and sale of contents or goods). Furthermore, the supervisory judge acts as chairman of the verification meetings.
- On the recommendation of the supervisory judge, the court may order the hostage-taking of the bankrupt. The supervisory judge may also summon and hear witnesses.
- A bankruptcy can end in the following ways:
- termination for lack of assets: if there are insufficient assets to be able to distribute an amount to others than the estate creditors, the bankruptcy is terminated for lack of assets.
- termination due to homologation of the offered settlement: “The bankrupt may propose a one-off settlement to creditors. Such a proposal often involves the bankrupt paying a percentage of the relevant claim, in return for which he is released from his debts for the remainder.
- lifting due to the final distribution list becoming binding:When the estate does not have sufficient assets to make a distribution to the unsecured creditors, but the preferential creditors can be (partially) satisfied
- removal on appeal by Court of Appeal
- dissolution at the request of the bankrupt and simultaneous pronouncement of application of debt restructuring scheme
Are my private assets subject to bankruptcy?
In bankruptcy, your entire assets are seized. Depending on the legal form of your business, you will also be declared bankrupt privately.
With a sole proprietorship, the entire assets will be seized in case of bankruptcy. So also the owner’s private assets.
If a general partnership is declared bankrupt, all partners are therefore also bankrupt. Therefore, if these partners are natural persons, their private assets fall into the bankruptcy.
With a limited partnership, bankruptcy also entails the bankruptcy of one or more general partners. If the general partners are natural persons, their private assets fall into the bankruptcy. The silent partners (lenders) remain unaffected with their private assets. They can only lose the amount they have put into the limited partnership.
BV, NV, Association, Foundation and Cooperative
BVs, NVs, associations, foundations and cooperatives are legal entities. Their bankruptcy affects only the assets of the legal entity and, in principle, not the private assets of the directors.
There are situations where a director of a legal entity can still be held privately liable. For example, improper management, lack of proper accounting, failure to file annual accounts or entering into obligations that the director knows the legal entity cannot fulfil.
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