Filing for bankruptcy and defending against bankruptcy petitions
If your business is in serious financial difficulty and restructuring or negotiating with creditors to reach a solution is no longer an option, there may be only one course left: bankruptcy.
Bankruptcy is a legal procedure that may be commenced at your request as debtor or at the request of your creditors. In these proceedings, your assets are placed under the control of the bankruptcy process.
Bankruptcy is declared where you, as a business owner, are in a state of having ceased to pay your debts. In that event, the court appoints a bankruptcy trustee and a supervisory judge. The bankruptcy trustee becomes responsible for administering and disposing of your assets, known as the bankruptcy estate. The principal objective is to distribute the proceeds of those assets among the creditors in accordance with their legal position and ranking.
Conditions for filing for bankruptcy
Certain conditions must be met before bankruptcy can be applied for:
- the business must have ceased paying its debts;
- there must be two or more debts owed to different creditors, at least one of which is due and payable (the payment deadline has expired).
How can bankruptcy be avoided?
Although bankruptcy is sometimes unavoidable, there are often ways to prevent it. Early identification of financial problems is crucial. By recognising the warning signs, you can take measures before it is too late. You can then develop an effective restructuring plan to put the business back on the right track. This may involve reducing costs, selling assets or seeking new financing. In some cases, bankruptcy can be avoided by reaching an arrangement with creditors. A WHOA restructuring procedure can also be used, under which certain creditors may be bound by a restructuring plan.
Directors' liability and continuity
of other group companies
Directors' liability
When bankruptcy appears unavoidable, you as a director run the risk of being held liable by the bankruptcy trustee at a later stage. It is therefore extremely important to understand which actions you may still take as a director of the company, and which actions you should no longer take.
For example, you must not give preferential treatment to certain creditors or enter into obligations that the company can no longer fulfil.
To avoid potential personal liability, it is necessary to notify the Dutch Tax and Customs Administration of an inability to pay in due time.
Continuity of other group companies
Within a group of companies, it is also crucial to understand the consequences that the bankruptcy of one group company may have for the others. For example, is there a fiscal unity? And what is the position regarding intercompany current-account claims?
The importance of expert legal assistance
Despite the cost, involving an expert lawyer in these proceedings is not only valuable but often necessary. An experienced lawyer can guide you through the complex bankruptcy process, protect your rights and interests, and advise you on the most appropriate steps to take.
what our clients say about us
When a customer held Celtic Holding BV liable for losses allegedly suffered as a result of the bankruptcy of its subsidiary Celtic Koeling BV, Harjo Bakker took decisive action. His ability to explain complex legal issues in plain language was invaluable. Ultimately, we won the case, much to our satisfaction.
Celtic Holding BV
Thanks to Harjo and Kelly, we opted for bankruptcy in time. It was not an easy decision, but ultimately it was the best choice for both the company and the staff. Because of them, we knew exactly what to do in this difficult situation.
Why instruct our insolvency lawyers?
In times of financial uncertainty, you want someone by your side who understands the issues. Our lawyers have in-depth knowledge of corporate law and bankruptcy proceedings.
We can support and guide you at every stage, from trying to prevent bankruptcy to limiting its consequences if bankruptcy is unavoidable. By seeking our expert assistance, you can minimise the risk of further financial loss and maximise the prospects of a successful recovery.
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Frequently asked questions
Wat is de rangorde van de verschillende typen schuldeisers?
Er zijn verschillende typen schuldeisers, hieronder de rangorde:
- Pand- en hypotheekhouders hebben de sterkste positie, zij kunnen hun rechten uitoefenen alsof er geen faillissement was.
- Boedelvorderingen. Dit zijn kosten die gemaakt zijn na de faillietverklaring zoals huur en het salaris van de curator.
- Preferente vorderingen. Dit zijn onder andere werknemers, het UWV en de Belastingdienst. Deze laatste beschikt over het ‘bodemrecht’, waarmee beslag gelegd kan worden op (bijna) alle goederen die de failliet onder zich heeft (van zichzelf of een ander) om haar schuld op te verhalen.
- Gewone of ‘concurrente’ schuldeisers. De hekkensluiters zijn de achtergestelde vorderingen, zoals kredietverstrekkers anders dan banken.
Get in touch
Do you have any questions or would you like to make an appointment? Get in touch with us, without any obligations.
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