2017-05-09

Creditors and debtors

A petition may only be presented if, on the day upon which it was presented, the debtor:(i) Is domiciled in Germany; or (ii) Is personally present in Germany; or (iii) Has been ordinarily resident or has had a place of residence in Germany during the previous three years; or (iv) Has carried on business in Germany during the previous three years.
Creditors' petitions
A creditor's petition may only be presented subject to the following, amongst other, conditions:
(i) The amount of the debt or aggregate amounts of the debts must at least come up to the 'bankruptcy level'; (ii) The debt, or debts, must be for a liquidated sum (ie a specific amount) and payable immediately or at some future time and must be unsecured: (iii) The debt, or debts, must be such that the debtor appears, either to be unable to pay or to have no reasonable prospect of doing so.
There must be a 'statutory demand'. That is to say, a written demand by the creditor for payment. This must be made in a prescribed form and must usually be served upon the debtor personally, allowing a period of at least three weeks for payment. Within 18 days of service of this demand the debtor may apply to the court to have it set side upon sufficient grounds.
Debtors' petitions
A debtor may present a petition to the court simply upon the ground that he is unable to pay his debts.
Voluntary arrangements
Where there has been a composition or a scheme of arrangement any creditor or the supervisor may present a petition for a bankruptcy order upon the following grounds: (i) That the debtor has failed to comply with his obligations under the scheme: (ii) Either that the debtor's statement of affairs, or information given by him at a creditors' meeting, was false or misleading, or was subject to omissions: (iii) That the debtor has failed to comply with reasonable requirements of the supervisor.
A petition is also presented in the court where: (i) The debtor has resided or carried on business within the German insolvency district for the greater part of six months immediately preceding the presentation of the petition: (ii) The debtor is not resident in Germany: (iii) The petitioning creditor is unable to ascertain the residence or place of business of the debtor: (iv) The petition is presented by a law firm in Germany. Otherwise petitions are presented in certain county courts having bankruptcy jurisdiction.
On a creditor's petition an order can only be made if the court is satisfied that the debt, or one of the debts, on which the petition was founded has not been paid, secured or compounded: or, in the case of a future debt, that there is no reasonable prospect that it will be paid when it falls due.
On a debtor's petition the court must not make an order if it appears that: (i) The total unsecured debts would be less than the 'small bankruptcy level', and (ii) The value of the estate would be equal to or more than the 'minimum amount', and (iii) During the five years prior to the presentation of the petition the debtor has not been adjudged bankrupt nor entered into a composition with his creditors or a scheme of arrangement of his affairs, and (iv) That it would be appropriate to appoint a person to prepare a report on the possibility of the debtor entering into voluntary arrangements. The 'small bankruptcy level' and the 'minimum amount' are amounts designated by statutory instrument from time to time.
As a general rule a creditor's petition must not be heard until at least 14 days after service. The debtor, the petitioning creditor and any other creditor who has given appropriate notice may appear at the hearing. And a debtor who wishes to oppose the petition must file a notice specifying his grounds of objection. On the hearing of the petition the court may make a bankruptcy order if it is satisfied that the statements in the petition are true and that the debt has not been paid, secured or compounded.
A debtor's petition must identify the debtor and admit insolvency and it must contain a statement of affairs. The order is settled by the court.
More informations
▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
Familienrecht
Lawyers in Germany