Insolvency Law

Bankruptcy and Restructuring

We are extensively involved in Insolvency law. Our colleagues are regularly appointed as trustees in bankruptcy or as administrators in a suspension of payments.

Bankruptcy and Restructuring Attorney

HAUT Legal has extensive experience and expertise in bankruptcy law. The trustees and lawyers of HAUT Legal have been involved (or have been in the past) in major and notable bankruptcies, restructurings, and debt settlements. As attorneys, we assist both companies in (financial) difficulties, suppliers, and other parties who have dealings with a financially troubled company. Additionally, we regularly act as a trustee in bankruptcies and as a receiver in suspensions of payment. 

Below, the application/report of bankruptcy, the suspension of payment (with agreement), and the out-of-court agreement are explained in detail.

Bankruptcy Proceedings

Bankruptcy can be requested by a) the entrepreneur himself (self-declaration), b) by a creditor whose claim remains unpaid, or c) by the Public Prosecution Service (for example, when there are many victims).

For a bankruptcy judgment based on self-declaration, the following must be met:

  1. There must be 2 or more debts, of which 1 is due (the payment term has expired).
  2. The company must be in a state of having ceased to pay.
  3. For a BV (limited liability company), the shareholders must have decided to request bankruptcy (for a sole proprietorship or partnership in some cases the marital partner must also co-sign).

     

The proper court for the self-declaration depends on the location of the company’s registered office. On the rechtspraak.nl website, you can check which region (district) the company falls under. You can also fill out and download the ‘Self-declaration bankruptcy’ form via the same site. The last page of this form precisely states which documents, sometimes originals, must be included. For a self-declaration, it is not mandatory to engage a lawyer, nor does a lawyer need to be present at the hearing. However, you, as the entrepreneur, must be present at the hearing. If you don’t want to experience any delays in filing your own declaration, we do recommend consulting a lawyer (briefly).

If a creditor requests bankruptcy, a judge will determine whether the bankruptcy application is justified. The entrepreneur will receive a call to attend a court hearing. To defend yourself, you must appear. If you choose not to attend the hearing, there’s a significant chance that the company will be declared bankrupt (in absentia).

 

Both the creditor/applicant and their lawyer must appear at the hearing themselves. If no one appears on behalf of the applicant at the hearing, the request can be dismissed by the judge. The hearing is not public.

During the hearing, the judge asks questions to check if the request can be granted. In this case, it is essential that the debtor:

  1. Has at least 2 debts, of which 1 is due.
  2. Has at least 2 creditors.
  3. Has ceased to pay.

     

During the hearing, you can, possibly with the assistance of a lawyer, defend yourself. We always advise drawing up a written defense. It’s crucial to demonstrate that the claim is unjustified and that the company is not in a state of having ceased payment, but that it’s merely a temporary payment incapacity situation.

 

If, despite the defense, bankruptcy is still pronounced, you can appeal the bankruptcy declaration. The case is presented for a new review to the Court of Appeal. This must be done within 8 days of the decision, and the mandatory assistance of a lawyer is required. If you still disagree with the decision of the Court of Appeal, there’s an option to go into cassation (also within 8 days). A cassation appeal is a request to the Supreme Court of the Netherlands to annul a previous decision of a Court of Appeal. Here too, mandatory lawyer assistance is required.

In case the company is declared bankrupt by a default judgment (because you weren’t present at the hearing), you can object to this judgment with the same judge. This must be done within 14 days of the decision. Mandatory lawyer assistance is required.

If no objection, appeal, or cassation is lodged, or if they are rejected, the bankruptcy becomes final. All decisions for the company are made by the trustee. The trustee will investigate whether a restart (see below) is possible and may continue the company for a short time. The company’s administration will also be closely examined, and the company’s management will be addressed. This includes checking whether the administration has been properly maintained, annual accounts have been deposited, and/or any notable transactions (legal actions) occurred shortly before the bankruptcy date. To avoid unexpected and often unpleasant surprises, we recommend having a risk analysis conducted by an external party (accountant/tax specialist or lawyer) before deciding to apply for bankruptcy.

Restart

A trustee will always try to achieve a restart of the bankrupt company. In this way, healthy parts are saved, and part of the staff may keep their jobs. Before a restart is realized, the trustee often negotiates with several interested parties. The basic principle is that the party that offers the most money gets the restart. The restarting party, of course, doesn’t have to deal with the bankrupt company’s creditors, as the debts remain behind.

Matters often purchased from the curator include goodwill, intellectual property rights, customer databases, and ongoing orders, but also inventory and stocks. Other matters such as (part of) the staff and loss-making contracts are often left behind.

Considerations for a restart include:

  • are ongoing agreements taken over – this requires contractual transfer and cooperation from the counterparty;
  • whether goods have been delivered subject to retention of title;
  • to what extent is there a case of successive employer-ship or does the taken-over staff enjoy protection;
  • are there key suppliers who may no longer want to deliver due to bankruptcy;
  • can the rent of the current location be continued in mutual agreement or does the landlord not cooperate;

     

Note: The above points must be thoroughly investigated before placing a bid in the context of a restart of the activities of the bankrupt company. 

Provisional Suspension of Payments

There are conceivable situations where bankruptcy may be too drastic a step. The company may currently be in dire straits, and creditors threaten with a bankruptcy application while the entrepreneur knows that there is an upcoming order in the pipeline, which would change the situation if fulfilled. In these cases, the application for provisional suspension of payments (possibly combined with an agreement) could offer a solution. To apply for a suspension of payments, there must be temporary inability to pay. Applying for a suspension of payments requires the filing of a petition. Legal assistance is necessary, and the application and handling process is extensively described on the rechtspraak.nl website.

Applying for Suspension of Payments

When applying for a suspension of payments, a proposal can simultaneously be made for an agreement to be offered. This can also be done at a later stage. Creditors are then asked to accept a portion of the outstanding claim. The advantage of an agreement during suspension is that not all creditors have to agree to the agreement. If half of the creditors representing half of the total debt agree, the other half (even if they vote against) are bound. This is called a forced agreement. How high the percentage to be offered within the framework of an agreement is hard to say. It depends on the financial capabilities that the entrepreneur demonstrably has and what the creditors are willing to give up. The offering of an agreement is not bound to a specific form, so various hybrid variants are possible.

The suspension results in payment obligations being postponed. However, this postponement does not apply to payment obligations to the Tax and Customs Administration. It is also essential that during the suspension, a restructuring plan is set up. Without such a plan, a suspension almost always ends in bankruptcy. When bankruptcy is pronounced after suspension, the administrator is usually appointed as the curator. 

Out-of-Court Agreement

HAUT Legal often uses the offer of an out-of-court agreement as a restructuring tool. The difficulty with an out-of-court agreement is that all creditors must agree to the proposal. It’s challenging for a debtor to assess whether it’s wise to agree to the proposed agreement. From the perspective of the person offering the agreement, it is crucial to provide sufficient information so that his/her creditors can assess the offer properly. It is essential to know who the creditors are, how the debts are structured, what the debtor’s current financial situation is, how the problems arose, and what the specific future prospects are. It is also wise to find out whether the debtor finances the agreement himself or whether a third party has made a sum available for this.

Act on Confirmation of Extrajudicial Restructuring Plans (WHOA)

On January 1, 2021, the Act on Confirmation of Extrajudicial Restructuring Plans (WHOA) came into effect. This introduced a new scheme in the Bankruptcy Act that allows debts to be restructured by offering an extrajudicial agreement. The WHOA aims to prevent bankruptcies. All creditors of a company in financial difficulties are divided into so-called classes. A proposal is then made by the company to each class for payment of part of the claim of these creditors in exchange for final discharge. This approach allows for more customization. If enough creditors are willing to cooperate with the agreement, the court can check the agreement and approve it upon approval. This gives it general effect, meaning that creditors who vote against are bound by the agreement.

Conservatory Seizure

In practice, conservatory seizure is applied before or during a legal procedure. The word ‘conservatory’ comes from the verb ‘to conserve’, which means to preserve. In practice, it can happen that a creditor fears during or before a procedure that his debtor will sell or encumber assets. Placing a conservatory seizure offers the creditor an opportunity to prevent the debtor from selling or encumbering assets before the creditor has obtained a judgment with which he can proceed to execution.

Execution Seizure

When a debtor is sentenced in a court judgment and does not proceed to settle the debt, the court’s judgment serves as a title to be executed. The bailiff serves the judgment and can then execute it. This means that after serving the judgment, the bailiff can seize the debtor’s assets. The execution seizure can be placed on, for example, movable goods (such as a car) and immovable goods (like a house). When seizing a house, the bailiff draws up a seizure writ and registers it in the public registers. This causes a blocking effect, which means that the owner can no longer freely sell the house. Whether the creditor can proceed to sale and recovery of the debt after seizure is not always straightforward. For example, the house may be burdened with a mortgage from the bank. 

Creditors' Agreement

A creditors’ agreement is offered by the debtor to reduce the existing debt burden. The agreement offered is not bound by rules, so its content is not limited. In bankruptcy law, a percentage agreement often occurs. This means that creditors are asked to accept partial payment of the debt in exchange for mutual final discharge. Whether such an offered creditors’ agreement can proceed depends on the outcome of a risk assessment. The question posed by the creditors in this context is: what are the chances that I will be better off with or without an agreement?

Bankruptcy Law Lawyers

HAUT Legal is a specialized firm in the field of, among other things, bankruptcy law. Are you looking for a bankruptcy law attorney? Please contact us without any obligation.

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HAUT Legal & Tax Advocaten
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