Filing of a claim in Bankruptcy
Filing of a claim in bankruptcy means a right of a creditor to secure his claim, receive settlement and use other judicial means granted to the creditor.
Filing of claims is performed by giving a written notice of a claim to the official receiver.
Filing of claim in bankruptcy is regulated mainly by Bankruptcy Act (Chapter 12) and in some cases also by Insolvency Regulation of Council of the European Union (EC).
Duties of the Receiver in the beginning of the process of filing of a claim in bankruptcy
The receiver sets a deadline for filing, until which the creditor has to secure his claim.
The deadline for filing is to be set without unnecessary delay and it has to be at the earliest after a month and at the latest after two months from the setting date.
The receiver reports the date to the court and ensures that the notice about filing of a claim in bankruptcy will be published in the Official Paper.
It is possible to alter the due date if needed or if there has been some mistake in setting the date or for other reason.
Written notice of a claim
According to the Bankruptcy Act the creditor has to file his claim by giving the receiver a written notice. The notice has to be sent to the receiver personally, as a rule by mail or electronically, if the receiver does not give other instructions.
According to law the notice has to include:
- Capital of the claim, accrued interest until declaring the company bankrupt, interest and penal interest after that as well other delay sanctions, and if the capital of the claim or the maximum amount cannot be determined, reason for that.
If the total amount of the claim is not yet known, the maximum amount shall be mentioned in the notice. In case even the maximum amount is not known, the reason for that shall be mentioned.
- Grounds of the claim, sufficiently specified.
Specifying a claim means determining the legal relationship concerned (e.g. rent contract receivables).
- Grounds of the interest specified accurately enough and the period for which the interest will be demanded.
- If any preference for the claim will be demanded, and on what grounds.
For example a preference for the claim could be at hand when the security of the claim is business mortgage.
- Information about establishing a lien and its contents, if the creditor has debtor’s possessions as pledge.
- Name and address of the creditor as well the contact person, who answers the queries about filing the claims.
Creditors have to specify the contract, commitment or other written proof, to which the creditor wishes to refer, and where the documents will be available, if they have not been forwarded to the receiver.
The receiver is allowed to accept the claim without creditors filing, if the grounds and amount of the claim are clear. This is, however, rather exceptional procedure.
About setting-off a claim
If the creditor wishes to use his right to set-off, he has to inform the receiver about that in the written notice of the claim. He has to include necessary information about the right to set-off in the notice.
If the debt to the debtor is less than the creditors claim, the creditor can secure the exceeding part as usual.
If the creditor does not file his claim until the due date, he can file it through supplementary registration. The ultimate deadline for supplementary registration is the closing date of the partitioning list. In supplementary registration the creditor hast to pay a fee of 1 % of the supplemented claim, however, at least 600 euros and maximum 6000 euros.
However, the fee will not be collected if the creditor was not notified about the filing of claims or he has had a legal impediment not to accomplish the filing.
Neglecting the payment does not make the filing invalid but in that case the creditor loses his right to decide in the bankrupt’s estate.