Information sheet for proceedings for the granting of residual debt discharge

Transcription

1 Information sheet for proceedings for the granting of residual debt discharge After the completion of insolvency proceedings, the insolvency court may cancel the residual debts of debtors if these are natural persons, upon request. Before the cancellation of the debts, however, the debtors must make every effort in good faith to pay off their debts. For six years, earned income and similar current earnings must be made available to a trustee for paying off the debts. For these proceedings for the granting of residual debt discharge, the Insolvency Code (InsO) stipulates particular rules. For the petition for the granting of residual debt discharge in consumer proceedings, special rules apply. Further details of this are shown in an information sheet for consumer insolvency proceedings, which may be obtained from the courts. 1. Petition A debtor may only file a petition for the granting of residual debt discharge by him / herself (section 287 InsO). The petition shall be conjoined with the debtor s petition to commence insolvency proceedings: If it is not conjoined with the petition to commence insolvency proceedings, the court will notify the debtor of the possibility of the granting of residual debt discharge. The petition for the granting of residual debt discharge must consequently be filed without delay after this notice. The petition must be filed in writing at the competent court (insolvency court). The details are as shown in a petition form, which may be obtained at any insolvency court. A declaration of assignment, according to which the debtor assigns attachable claims of earnings from an employment relationship (e.g. claims for earned income) or other current earnings, which replace these earnings (e.g. old-age pensions or benefits of the unemployment insurance fund) to a trustee, whom the court determines in the further course of the proceedings. If these claims have already been assigned or pledged to a third party beforehand (e.g. to lenders) this must be stated in the declaration of assignment. The income exempt from execution remains with the debtors. 2. Insolvency proceedings as a requirement for the granting of residual debt discharge The insolvency court will only deal with the petition for the granting of residual debt discharge unless the petition is inadmissible (e.g. because it was delivered late) if the commenced insolvency proceedings have essentially been carried out and are near completion. At least the general hearing for the proving of debts, in which the notified creditors claims have been examined, must have taken place. Moreover, the debtor s freely available assets (the insolvent person s estate) must have been evaluated and the distribution of the proceeds be terminated (section 289 (1), (3) sections InsO). 3. The institution of proceedings: Notice or refusal of granting of residual debt discharge The proceedings to grant residual debt discharge may be broken down into the following main sections: Notice of proceedings Period of good conduct Granting of residual debt discharge, Revocation proceedings. The first decision of the insolvency court on the granting of residual debt discharge is the decision regarding its formal notice (sections InsO). Here, it is decided whether the proceedings have actually been commenced.

2 Before the decision, the insolvency creditors are given the opportunity to deliver an opinion on the debtor s petition in the last meeting of creditors before the completion of the insolvency proceedings (or in the corresponding part of the proceedings carried out in writing). In the process, any insolvency creditor may file a petition for the rejection (refusal) of the granting of residual debt discharge. Insolvency creditors are creditors who had a justified personal claim to assets against the debtor at the time of the commencement of proceedings (section 38 InsO). A reason for refusal is at hand if the debtor (cf. section 290 (1) InsO): has been finally convicted of a criminal offence in insolvency matters (sections 283 to 283c StGB), in the last few years before the petition to commence insolvency proceedings (petition to commence proceedings) or after this petition of wilfully or by gross negligence furnishing incorrect or incomplete written details of the economic circumstances in order to obtain a loan, obtain payments from public authorities or avoid payments to public funds, in the last few year before the petition to commence proceedings or after this petition already obtaining the granting of residual debt discharge or this has been refused pursuant to section 296 or 297 InsO, in the last year before the petition to commence proceedings or after this petition wilfully or by gross negligence impairing the satisfaction of the insolvency creditors to the effect that inappropriate liabilities were established, assets were wasted or the commencement of the insolvency proceedings was delayed without prospects of an improvement of the economic situation, during insolvency proceedings wilfully having breached duties to furnish information and cooperate pursuant to the Insolvency Code or in the schedules of assets, income and creditors and claims to be presented pursuant to section 305 (1) no. 3 InsO wilfully or by gross negligence having furnished incorrect or incomplete details. The petition for refusal to grant residual debt discharge is only admissible if the alleged ground for the refusal is substantiated (section 290 (2) InsO): The means of substantiation (e.g. affirmation in lieu of oath or suitable certificates) must be presented with the petition for refusal to grant residual debt discharge; the offer to file the supporting documents subsequently is not sufficient. Moreover, the granting of residual debt discharge must be refused if the debtor during the consumer insolvency proceedings has failed to comply with a court order to pay pursuant to section 314 InsO. According to this regulation, the court may order that the insolvent person s estate will not be realised in whole or in part, but instead the debtor must raise a certain monetary amount. If this amount is not paid despite two setting a time-limit for observance, this is a ground for refusal (section 314 (3) sentence 2 InsO). If the court does not establish a ground for refusal after consulting with the debtors and after clarification of the facts of the case, it will announce the granting of residual debt discharge (section 291 InsO). At the same time, a trustee determines this. The debtor s attachable earnings are transferred to this person based on the declaration of assignment.

3 4. Debtor s obligations in the period of good conduct The legally valid notice of the granting of residual debt discharge constitutes the start of the term of the declaration of assignment. This so-called period of good conduct lasts six years and is calculated already from the commencement of the insolvency proceedings. In the case of debtors who were already insolvent on 1 January 1997, this ends after five years (Art. 107 of the Introductory Law to the Insolvency Code [Einführungsgesetz zur Insolvenzordnung (EGInsO)]). In this time, the insolvent person has the following duties (Obligations, section 295 InsO): He / she must engage in gainful employment and, if he / she is without employment, must make every effort to find such; he / she may not reject any reasonable employment activity. If he / she engages in a self-employed employment activity, he / she must place the insolvency creditors, through payments to the trustee, in the same position they would have been in had he / she entered into an employment relationship. He / she must return half of the value of the assets that he / she acquires ex mortis causa or in consideration of a future share is a deceased person s estate, to the trustee. He / she must notify any change of place of residence or place of employment without delay to the insolvency court and the trustee. He / she may not conceal from the court and the trustee any of the earnings included in the declaration of assignment or assets which he / she acquires ex mortis causa or in consideration of a future share in a deceased person s estate. He / she must give information to the court or the trustee on request about his / her gainful employment or his / her efforts to find such as well as his / her earnings and assets. He / she may only make payments for satisfying the insolvency creditors to the trustee and may not procure a special advantage to individual insolvency creditors. 5. Trustee s duties in the proceedings for the granting of residual debt discharge The trustee collects the insolvent person s attachable current earnings on based on his / her declaration of assignment and distributes the incoming amounts and other payments once yearly to the insolvency creditors (section 292 (1) InsO): At the end of the period of good conduct, the insolvent person receives one part of the monetary amounts received from the trustee: in the fifth year10% and in the sixth year after the revocation of the insolvency proceedings 15%. If deferred procedural costs have not yet been corrected however these differential amounts will only be transferred to the debtors if the income does not exceed the amount calculated pursuant to section 115 (1 of the Code of Civil Procedure [Zivilprozeßordnung (ZPO)(section 292 (1) sentences 4 and 5 InsO). The meeting of creditors may additionally transfer the duty to the trustee, monitor the fulfilment of the debtor's obligations and notify the group of creditors in the case of an established breach. The trustee is only obliged to monitor the fulfilment if the additional remuneration due for this is covered or advanced to the group of creditors (section 292 (2) sentence 3 InsO). The trustee receives remuneration and reimbursement of the appropriate expenses from the money administered (section 293 InsO). If the minimum remuneration of a trustee is not once covered this can lead to the refusal to the granting of residual debt discharge. This does not apply if the costs are deferred.

4 6. Executions, assignments and pledging in the period of good conduct Executions for individual insolvency creditors against the debtor s assets, which remain after the assignment to the trustee and which are newly additionally acquired are inadmissible during the period of good conduct (section 294 (1) InsO): Earlier pledging of the current earnings has become invalid on account of the commencement of the insolvency proceedings assignments and contractual pledging of the earnings loses its validity three years after this time if the debtor was already insolvent before 1 January 1997, already after two years (section 114 (1), (3) InsO, Art. 107 EGInsO). The execution remains admissible for new creditors whose claims have been established only after the commencement of the insolvency proceedings. They can access the debtor s other attachable assets. 7. Premature suspension of proceedings: Refusal of the granting of residual debt discharge during the period of good conduct If the debtor breaches an obligation during the period of good conduct (cf. item 4) and thereby impairs the satisfaction of the group of insolvency creditors, at the request of an insolvency creditor, the court must refuse the granting of residual debt discharge if the insolvent person fails to prove that he / she is not at fault (section 269 InsO). The request may only be filed within one year after the time in which the breach of obligation has become known to the creditor. It is only inadmissible if the breach of obligation and observance of the annual time-limit is substantiated (section 296 (1) InsO). The means of the substantiation (e.g. affirmation in lieu of oath or other written documents) must be presented with the petition for refusal; the offer to file the supporting documents subsequently is not sufficient. Before the court decision, the persons involved are given the opportunity to deliver an opinion. The debtor is obliged to give complete and truthful information on the fulfilment of the obligations and at the request of a creditor make an affirmation in lieu of oath (section 296 (2) InsO). The court may set a fixed date for the written communication of the information or affirmation in lieu of oath. If the insolvent person fails to give the information or affirmation in lieu of oath without sufficient excuse within the set period fixed, the court must refuse the granting of residual debt discharge. The same applies if despite a writ of summons in proper form and without sufficient excuse it fails to appear on the appointed date (section 296 (2) InsO). Furthermore, the granting of residual debt discharge must be refused if it turns out that the debtor has been finally convicted of a criminal offence in insolvency matters since the last creditors meeting (sections 283 to 283c StGB). Here too, each insolvency creditor is entitled to file a petition. For the petition, the abovementioned regulations regarding the annual time-limit and the substantiation apply accordingly (section 297 (2) InsO). At the request of the trustee, the granting of residual debt discharge must be refused if the amounts that have been transferred based on a declaration of assignment in one year do not once cover the minimum trustee s remuneration and despite a request to pay by the trustee and a further notice by the court the insolvent person does not pay in the lacking amount (section 298 InsO). To prevent the premature suspension of the proceedings, the procedural costs may be deferred upon request if the assets probably will not be sufficient to cover these.

5 The final refusal of the granting of residual debt discharge constitutes the failure of the targeted release from debts. The creditors may assert their claims without any restrictions and access all of the debtor s attachable assets (section 299) InsO). 8. Debt cancellation: Granting of residual debt discharge after the end of the period of good conduct If the period of good conduct lapses without a premature termination, the insolvency court decides about the cancellation of residual debts (granting of residual debt discharge). The court also gives the persons involved in the proceedings the opportunity to deliver an opinion. Insolvency creditors as well as trustees may file a petition for the granting of residual debt discharge. For this, the same requirements, time-limits and procedural rules apply as during the period of good conduct (section 300 (2), section 296 to 298 InsO); cf. item 7). 9. Effects of the granting of residual debt discharge The granting of residual debt discharge has an effect against all insolvency creditors. It relates to the debts that have already been established at the time of commencement of the insolvency proceedings (section 38 InsO) and have not yet been paid off. It also applies with respect to insolvency creditors who have not reported their claims (section 301 (1) InsO). The granting of residual debt discharge does not include so-called estate liabilities, i.e. the liabilities that have arisen in connection with the insolvency proceedings (section 53 InsO). Likewise, the granting of residual debt discharge does not cover new debts which have only been established after the commencement of the insolvency proceedings in particular not the constantly recurring obligations to pay maintenance or rent after the appointed date of the commencement of proceedings. Furthermore, the following obligations are not included in the granting of residual debt discharge: - Payment obligations from an intentionally committed tortious act, if the claims after stating the legal grounds and the facts based on which according to the estimation of the creditors it ensues that this is based on an intentionally committed tortious act, was reported to the insolvency table (section 302 no. 1, section 174 II inso) and the entry in the insolvency table that this claim is based on an intentionally committed tortious act has not been removed. - Fines, administrative fines, administrative fees, coercive penalty payments and incidental financial consequences of a criminal offence or administrative offence (section 302 no. 2 InsO), - Liabilities from interest-free loans which were granted to the debtor for the settlement of the costs of the insolvency procedures (section 302 no. 3 InsO). The insolvency creditors retain their rights with respect to jointly liable persons and guarantors. They may continue to assert their claims for example against guarantors. On the other hand, the guarantors no longer have recourse against the debtors. The rights of the insolvency creditors from priority notices of securities in the land register or other security interests such as rights of lien, transfers by way of security continue to exist (section 301 (2) sentence 1 InsO). The debtor may invoke the residual debt discharge with regard to jointly liable persons, guarantors or other persons with a right of recourse in the same way however as with regard to the insolvency creditors (section 301 (2) sentence 2 InsO).

6 10. Subsequent revocation of the granting of residual debt discharge Even after the finality of the decision on the granting of residual debt discharge, the debtor must under circumstances be answerable for gross dishonest conduct in the period of good conduct. The insolvency court must revoke the granting of residual debt discharge upon the petition of a insolvency creditor if it turns out subsequently that through an intentional breach of obligation by the debtor the satisfaction of the group of insolvency creditors was impaired (section 303 (1) InsO). The petition by the creditors is only admissible if it is filed within one year after the finality of the decision about the granting of residual debt discharge. At the same time, prima facie evidence must be furnished that the stated requirements for the revocation are met and the petitioner had no knowledge of them up to the time of finality of the debt cancellation (section 303 (2) InsO). The decision on the revocation is issued after consulting the debtor and the trustee and, if necessary, after further clarification of the facts of the case. 11. Cost burden in the case of petitions for the refusal or revocation of the granting of residual debt discharge In proceedings for a petition to refuse or revoke the granting of residual debt discharge, court costs are incurred in particular in the case of the hearing of evidence. These costs are principally borne by the unsuccessful Party (section 91 ZPO, section 4 InsO). In addition, however, in relation to the public purse, the creditor filing the petition is always also liable (section 50 (2), (58) of the German Legal Costs Act [Gerichtkostengesetz (GKG)].