Filing for bankruptcy

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Filing for bankruptcy is not always the right way.

We are aware that filing for bankruptcy is never a fun moment. In some cases, there is no other way out. In other cases, there is.

In order to file for bankruptcy for a BV yourself or to declare a BV bankrupt by the court, several steps must be taken. We can help with this process. Contact us to discuss the possibilities.

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Why do I have to declare someone bankrupt?

As a creditor , it is sometimes wise to get involved early. If you receive signals that you will no longer receive your money or that the chance of this is becoming smaller, bankruptcy can ensure that you still see part of your money back. If you don’t do this, there is a real chance that you will never see the investment you have made.

Why file for bankruptcy yourself?

Your BV has too many debts, if you see no further way out, filing for bankruptcy yourself may be the only way out. A particularly unpleasant situation that has consequences for the coming period. For this reason, you want to be well informed about the possibilities and consequences of a bankruptcy application.

Who can file for bankruptcy?

There are various persons and agencies that can file or ratify a bankruptcy petition. In all cases, it means that the financial obligations can no longer be met. The result is a bankruptcy declared by the court.

Filing your own bankruptcy petition yourself

You are no longer able to pay your debts and you are financially ruined. If you do not see a way out in the short to medium term, it is possible to file your own bankruptcy application yourself. The court is ultimately the body that decides whether you will actually go bankrupt depending on the situation you are in. We can guide you in this. If you are interested in this service, please contact us.

Bankruptcy filing by creditors

Are you with two or more creditors? Does the person or company in question have at least two debts, 1 of which is due and payable? Has the debtor ceased to pay and is this to your disadvantage? Then filing for bankruptcy is a good step. You should hire a lawyer who will submit an application to the court together with you. If the debtor is eventually declared bankrupt, it is up to the trustee to determine how much you will receive from the bankrupt estate.

The Court

Ultimately, it is always the court that determines whether the bankruptcy petition will be honored. If the creditors are found to be in the right, 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 in court. Bankruptcy can be done without a lawyer at your own request, if you file for bankruptcy of someone else, you should always hire a lawyer.

The bankruptcy filing procedure

When bankruptcy has been filed or is imposed, the following 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 pronounced by the court, which appoints a trustee and a supervisory judge.
  • The bankrupt loses by operation of law the disposal and management of the assets (private or of the company)
  • The trustee acts in place of the bankrupt party, who then becomes incapacitated.
  • The trustee manages the liquidation of the bankrupt estate.
  • The trustee also represents the interests of the creditors.
  • The receiver ensures the publication of the judgment by registering with
  1. the bankruptcy registry and the Chamber of Commerce
  2. the advertisement in the Government Gazette
  3. the advertisement in a national newspaper
  • He examines the estate and tries to determine what the bankrupt’s assets and debts are.
  • The trade association takes over all salary obligations from the bankruptcy date. In exceptional cases, it may also happen that (part of) overdue salary is included.
  • The trustee prepares the verification meetings in cooperation with the examining magistrate.
  • If necessary, he dismisses staff members and sells the remaining assets (goods, stocks, cars and real estate). In any case, employees with a salary claim take precedence over all unsecured creditors.
  • If he identifies improper management or fraudulent behaviour, he shall take the appropriate measures.
  • The examining magistrate supervises the management and liquidation of the bankrupt estate and the actions of the trustee.
  • For certain activities, the trustee must request permission from the examining magistrate (for example: dismissal of staff and sale of household effects or goods). Furthermore, the examining magistrate acts as chairman of the verification meetings.
  • On the recommendation of the examining magistrate, the court can order the detention of the bankrupt party. The examining magistrate can also call and hear witnesses.
  • A bankruptcy can end in the following ways:
  1. Liquidation due to lack of assets: If there are insufficient assets to be able to distribute an amount to parties other than the estate creditors, the bankruptcy will be lifted due to lack of assets.
  2. termination due to approval of the proposed composition:”The bankrupt can propose a one-off composition to the creditors. Such a proposal often involves the bankrupt paying a percentage of the claim in question, in return for which he is released from his debts for the remainder.
  3. Termination due to the binding nature of the final distribution list:When the estate does not have sufficient assets to make a distribution to the unsecured creditors, but the preferential creditors can be (partially) paid
  4. abolition of judgment of the court of appeal by the Court of Appeal
  5. dissolution at the request of the bankrupt and at the same time pronounce the application of the debt restructuring scheme

Are my private assets covered by the bankruptcy?

In the event of bankruptcy, the entire assets are seized. Depending on the legal form of your company, you will also be declared bankrupt privately.

Sole proprietorship.

In the case of a sole proprietorship, the entire assets are seized in the event of bankruptcy. So also on the private assets of the owner.

VOF

If a general partnership is declared bankrupt, all partners are also bankrupt. If these partners are natural persons, their private assets will therefore fall into bankruptcy.

Central heating

In the case of a limited partnership, bankruptcy also entails the bankruptcy of one or more general partners. If the general partners are natural persons, their private assets will be covered by the bankruptcy. The silent partners (lenders) remain out of harm’s way with their private assets. They can only lose the amount they have put into the CV.

BV, NV, Association, Foundation and Cooperative

BVs, NVs, associations, foundations and cooperatives are legal entities. The bankruptcy of this only relates to the assets of the legal entity and in principle not to the private assets of the directors.

There are situations in which a director of a legal entity can still be held privately liable. For example, in the event of 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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