Notes on filing proof of debt for
insolvency proceedings
Once insolvency proceedings have been instituted the creditors in the insolvency proceedings must file their claims with the insolvency administrator. The processing of incorrectly filed claims will be delayed. Creditors should therefore take careful note of the following information and the information provided on the form used to file claims. More details can be found in the Insolvency Statute (lnsolvenzordnung) in Sections 38-52, 174 -186 in particular. The court is not entitled to issue legal information about specific issues. This is the responsibility of lawyers, notaries, legal secretaries and other persons authorised to practise law without being lawyers.
Filing claims with the insolvency administrator
Claims filed by the insolvency creditor must be filed in writing with the insolvency administrator and not with the court. Insolvency creditors are all individual creditors who hold a substantiated claim against the debtor at the time proceedings are instituted (Section 38 InsO).
If a custodian or fiduciary is appointed (Sections 270, 313 lnsO), such person shall have the same legal standing as far as the filing and verification of claims is concerned as the insolvency administrator.
Content and annexes to the proof of debt
Filed proof of debt must state the grounds of the claim to facilitate verification by the insolvency administrator (e.g. goods delivered, rent, loan, repair work, wages, change, compensation).
All claims must be asserted in fixed amounts in national currency and subsequently totalled.
Interest can only be claimed for the period prior to institution of the proceedings (date of the insolvency order) and must be calculated according to the rate of interest and period and stated as a fixed amount.
Claims which are not based on money or the financial value of which is unspecified must be filed at estimated values.
Claims in foreign currency must be converted to national currency at the exchange rate applying at the time the proceedings are instituted (Section 45 lnsO).
The claims form must be used. Claims which are informally worded and not made using the form very often give rise to confusion and time-consuming queries and costs.
Claims must filed with the documentary evidence and other correspondence substantiating the claim. Creditors' authorized representatives must enclose special power of attorney when filing claims.
Two copies of the claim and the appended documents must be submitted.
Creditor with right to separate settlement
Creditors who are entitled to preferential satisfaction on the basis of a lien or other collateral rights are insolvency creditors to the extent that the debtor is also personally liable to them. Personal claims of this sort may be filed.
Lower ranking creditors
Some claims rank behind the general claims held by creditors of the insolvency proceedings. According to Section 39 lnsO:
(1) The following claims shall be satisfied ranking below the other claims of creditors of the insolvency proceedings in the order given below, and according to the proportion of their amounts if ranking with equal status:
1. the interest accruing on the claims of the creditors of the insolvency proceedings from the opening of the insolvency proceedings;
2. the costs incurred by individual creditors of the insolvency proceedings due to their participation in the proceedings;
3. fines, administrative penalties, coercive penalty payments, as well as such incidental legal consequences of a criminal or administrative offence binding the debtor to pay money;
4. claims to the debtor's gratuitous performance of a consideration;
5. claims to the refund of loans borrowed from a partner and replacing equity capital, or claims having the same rank as these
(2) Claims which the creditor and the debtor agreed to be non-privileged in insolvency proceedings shall be satisfied after the claims referred to in Paragraph 1 if the agreement does not provide otherwise.
(3) Interest accruing on the claims of non-privileged creditors of the insolvency proceedings, and the costs incurred by such creditors due to their participation in the proceedings shall rank with equal status as the claims of such creditors.
Lower-ranking creditors shall only file their claims if explicitly requested to do so by the insolvency court (174 (3) lnsO). Upon filing such claims their lower-ranking status shall be indicated, and the creditor's lower rank shall be designated.
Claims filed in parallel proceedings
If insolvency proceedings involving a partnership have been instituted against the assets of the partnership (such as GbR, OHG, KG) and the assets of one of the partners with personal liability, a full claim need only be filed with respect to the assets of the partnership. Claims against the liable partners are only filed by the insolvency administrator (Section 93 lnsO).
Subsequent filing of claims
Additional verification proceedings may be necessary if claims are only filed after the filing period has expired. The costs of additional verification must be paid by the defaulting creditor (Section 177 (1) sentence 2 lnsO).
Employee's claims to insolvency substitute benefits
Employees, trainees or home workers of insolvent employers are entitled to insolvency substitute benefits provided that such persons hold wage claims for the three month period preceding institution of the insolvency proceedings. Insolvency substitute benefits are paid on application by the employment office. The value of such benefits depends on the outstanding net wages due.
More details are provided in an information sheet available from any employment office.
If insolvency substitute benefits are paid, the claim to back pay is transferred to the Federal Labour Office.
Examination of claims and the effect of dispute (denial)
Filed claims are examined at the verification meeting. The court may order that the examination take place in the framework of written proceedings. The insolvency administrator or debtor are not the only actors entitled to dispute (deny) any claims which may have been filed. All creditors are also entitled to dispute - in whole or part - the amount or rank of any claim.
If a claim is not disputed - or is only disputed by the debtor - such claim is deemed to have been determined for the purpose of the continuing proceedings (Section 178 lnsO). A claim denied by the debtor is only deemed not determined if personal management is ordered (Section 283 (1) sentence 2 lnsO).
An effective objection to the claim filed has the following impact (cf. Section 178 - 185 lnsO):
- If such a claim is based on an executable deed (judgment, notarized acknowledgement of debt, tax assessment or similar), pursuing the denial by taking acceptable legal means is encumbent on the denying party.
- If no such executable deed is available, it is encumbent on the assumed creditor to pursue determination of the claim by due process of law. The denying party must also expect the assumed creditor to bring an action against it in response to the such party's denial.
Information about the outcome of the verification of claims
The creditor is not required to attend the verification meeting either in person or via a representative.
However, after the claims have been verified, the court only informs those creditors whose claims have been wholly or partially denied. The Insolvency Court provides creditors with an ex officio extract from the insolvency schedule detailing the outcome of the examination.
Creditors whose filed claims are not disputed by either the insolvency administrator nor any other creditor (or by the debtor in the case of personal management) are not separately informed by the court (Section 179 ( 3) lnsO).
Notes on determining denied claims
If the claim filed by a creditor in the insolvency proceedings is not determined (in full), the claim shall be subject to ordinary civil proceedings (Section 180, 185 lnsO). The Insolvency Court does not have jurisdiction in such cases.
Claims under civil law must be brought before the civil or labour courts depending on the cause in law. Jurisdiction is held exclusively by the court in which the insolvency court is located (Section 180 (1) lnsO).
If an action concerning such claim was pending on the date when the insolvency proceedings were instituted, determination of the claim is initiated by joining such action (Section 180 (2) InsO; Section 240 Code of Civil Procedure - ZPO -).
If the creditor in the insolvency proceedings wins such action, such creditor must apply to the insolvency court for the insolvency schedule to be corrected (Section 183 (2) lnsO).
All other procedural details relating to the procedure for determining disputed claims are specified in Sections 179 to 185 lnsO.