Official Instructions for Filing a Claim in Insolvency Proceedings
(in accordance with the German Insolvency Code [Insolvenzordnung (InsO)])
Once insolvency proceedings have been instituted, the creditors in the insolvency proceedings must file their claims with the insolvency administrator [Insolvenzverwalter]. Faulty filings may result in the processing being delayed. In their own interests, creditors should therefore take careful note of the following information and the details provided on the form used to file claims.
1. Filing claims with the insolvency administrator
Claims of the insolvency creditors must be filed with the insolvency administrator and not with the court. Insolvency creditors are all persons who have a substantiated claim against the debtor at the time insolvency proceedings are instituted (Section 38 InsO).
If a custodian [Sachwalter] or fiduciary [Treuhänder] is appointed (Sections 270 and 313 lnsO), all claims are to be filed with such person.
2. Content of and attachments to the claim filing form
Upon its filing, the reason for the claim (e.g. delivery of goods, rent, loan, repair service, salary, bill of exchange, damages) shall be indicated in order to enable the insolvency administrator to verify the claim.
If the creditors have the opinion that a claim is based on a tort, they must state the facts on which this assessment is based, and namely for each of these claims, which are directed against natural persons.
All claims must be asserted as fixed sums in German currency (euros) and finally the total amount shall be summarised. Claims in foreign currency must be converted to German currency at the exchange rate applying at the time the proceedings are instituted (Section 45 lnsO).
Non-liquidated claims or contingent claims shall be filed at their estimated value.
All documentary proof and any other written material supporting the claim must be enclosed with the filing form.
Creditors' authorized representatives must enclose a special power of attorney for the insolvency proceedings when filing claims.
Documentary proofs of other claims must be furnished through copies of supporting documents, e.g. bills, contribution statements, tax assessments or tax calculations, contracts, etc.
Documentary proofs of costs incurred must likewise be furnished through copies of supporting documents, e.g. deposit receipts of court costs, bills of fees of the attorneys-at-law for judicial executions etc., vouchers for returned direct debits, copies of reminders, proofs of postage in the form of receipts or copies of receipts of posting. Lump-sum costs cannot be recognized. Costs that have arisen through the participation in the insolvency proceedings (e.g. postage for sending the registration documents, copying costs, workload, attorney-at-law's fees for the application for registration) shall be included among the lower-ranking claims in accordance with Section 39 InsO. These may only be filed if the insolvency court specifically requests the creditors to do so (Section 174 InsO).
Interest must be filed stating the percentage and the start of the interest period (due date of the claim). It must be calculated and stated at a fixed amount. If default interest is asserted, documentary proof of the commencement of the default (Section 286 of the German Civil Code [Bürgerliches Gesetzbuch (BGB)] as well as the amount of the default interest must be furnished. The documentary proof may be furnished in the form of a certificate from the bank that a credit facility with a corresponding interest rate was drawn on in the stated period.
The statutory interest rate in accordance with Section 288 BGB is 5 percentage points p.a. (in the case of consumer participation in accordance with Section 13 BGB) and 8 percentage points p.a. (between merchants) above the base interest rate. The base interest rates may be viewed at www.basiszinssatz.de. On this Internet page it is also possible to calculate the interest.
Interest claims in accordance with Section 195 BGB shall become statute-barred after three years, unless there has been an interruption of this time period. In accordance with Section 38 InsO, interest may only be filed up until the date when the insolvency proceedings were instituted. Current interest for a period after instituting the insolvency proceedings shall be included among the lower-ranking claims in accordance with Section 39 InsO.
Estimates cannot be recognized. The amounts must be specified in the course of the proceedings in order to be recognized as a claim.
3. Creditors with a right to separate settlement
Creditors who are entitled to separate satisfaction on the basis of a lien or other collateral rights are insolvency creditors in so far as the debtor is also personally liable to them. This personal claim can be filed by them. They will, however, only be considered in the distribution of the insolvency assets if they waive their right to separate satisfaction or if their claim was not met by such separate satisfaction (Section 52 InsO).
4. Lower-ranking creditors
A special regulation shall apply to the so-called lower-ranking insolvency creditors (Section 39 InsO). Lower-ranking claims are among other things the current interest during the institution of the proceedings, the costs of participation in the proceedings, the pecuniary penalties, fines, administrative fines and penalty payments, the claims for a gratuitous benefit by the debtor or for the return of a partner's loan in lieu of equity capital or equivalent claims.
Such lower-ranking claims may only be filed by the creditors if they are explicitly requested to do so by the insolvency court (Section 174 (3) lnsO). Upon the filing of such claims, their lower rank as well as the rank claimed by the creditor must be indicated.
5. Filing claims in parallel proceedings
If in the case of commercial partnerships (e.g. GbR, OHG, KG under German law) the insolvency proceedings have been opened for both the assets of the partnership and of a personally liable partner, a complete filing of claims for the proceedings regarding the assets of the partnership including the required documents must be submitted. Filing a claim in insolvency proceedings regarding the assets of the personally liable partner is in principle not permitted (Section 93 InsO).
6. Subsequent filing of claims
Claims that are filed after the time limit specified herefor by the court may, under certain circumstances, require an additional verification procedure. The costs of additional verification must be paid by the defaulting creditor (Section 177 (1) sentence 2 lnsO).
7. Claims for substitute benefits
Employees, apprentices and homeworkers are entitled to claim substitute benefits in the event of insolvency of their employer. This shall require that, at the time of instituting insolvency proceedings or in the event of the rejection of the request to open insolvency proceedings due to an insufficiency of assets, they can still claim wages for the last three months preceding the insolvency reference date. The substitute benefits shall be paid on request. The amount shall depend on the unpaid net salary. Further information may be obtained from the employment offices.
If substitute benefits are paid, the claim for unpaid wages shall pass to the Federal Labour Office [Bundesanstalt für Arbeit].
8. Verification of claims and effect of denial (contestation)
The filed claims shall be examined in a verification meeting. In proceedings for consumers or self-employed persons with minor business activity, the verification may also take place in written proceedings, if so ordered by the court. The claims filed can be denied by the insolvency administrator, the debtor and each individual insolvency creditor. All claims can be denied in total or in part with regard to their amount or rank.
If creditors allege that the claim originates from an intentionally committed tort by the debtor, the debtor must additionally state in its denial whether this allegation is contested.
If a claim is either not denied or is denied only by the debtor, it shall be deemed to be recognized, in accordance with the filing documents, for the further insolvency proceedings (Section 178 InsO). A claim denied by the debtor is only deemed not recognized if self-administration is ordered (Section 283 (1) sentence 2 lnsO).
An effective rejection of a claim filed shall have the following impact (cf. Sections 178 to 185 lnsO):
- If such a claim is based on an executable title (judgment, notarized acknowledgement of debt, tax assessment or similar), pursuing the denial by taking acceptable legal means shall be incumbent on the denying party.
- If such executable title has not yet been received, it shall be incumbent on the supposed creditor to pursue the recognition of the claim by due process of law. Therefore, the denying party must expect the supposed creditor to bring an action against it in response to such party's denial.
9. Participation in creditors' meetings, proof of representation
Each creditor may personally attend the verification meeting or other creditors' meetings. Legal representatives or authorized agents must furnish documentary proof of their entitlement to represent a creditor in the meeting. As documentary proof, a current excerpt from the commercial register or written power of attorney can be submitted. In addition, the personal identity document must be brought along.
10. Information on the outcome of the verification of claims
The creditor is not obliged to attend the verification meeting either in person or via a representative. However, after the claims have been verified, the court will only inform those creditors whose claims have been wholly or partially denied. The insolvency court will provide these creditors with an ex-officio extract from the insolvency schedule detailing the outcome of the verification.
Creditors whose filed claims are not denied by the insolvency administrator or any insolvency creditor (or by the debtor in the case of self-administration) will not be separately informed by the court (Section 179 (3) lnsO).
11. Notes on the recognition of denied claims
In the verification procedure, the insolvency court will only record the declarations by the persons involved. If a claim filed by a creditor is not recognized (in full) in the insolvency proceedings, the recognition of such claim can be pursued by ordinary civil proceedings (Sections 180 and 185 lnsO). This does not fall under the jurisdiction of the insolvency court.
In the event of differences of opinion regarding the rank or amount of a claim, the insolvency court must therefore not be involved.
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 whose district the insolvency court is located (Section 180 (1) lnsO).
If an action concerning such claim was pending at the time insolvency proceedings were opened, recognition of the claim shall be carried out by the joinder of such action (Section 180 (2) InsO and Section 240 of the German Code of Civil Procedure [Zivilprozessordnung (ZPO)]).
If the insolvency creditor wins such action, such creditor must apply to the insolvency court for amendment of the insolvency schedule by presenting the final judgment (Section 183 (2) lnsO).
If the debtor has denied a claim for which an executable title or a final judgment exists, the debtor shall be obliged to bring an action to deny the claim outside of the insolvency proceedings in accordance with the general laws within a period of one month, which shall commence on the verification reference date. In this case, the debtor must furnish documentary proof to the insolvency court that it has brought an action to deny the claim. After the end of the period of one month to no avail, the claim shall be deemed not to have been denied (Sections 184 (2) and 201 (2) and (3) InsO).
All other procedural details relating to the procedure for recognizing disputed claims are specified in Sections 179 to 185 lnsO.