Bankruptcy Law and WSNP
If you or your company is “in a state of having ceased to pay,” the Court can, at your or a creditor’s request, declare bankruptcy.
This situation is (in any case) accepted by the Court if at least two creditors are left unpaid. The creditor with whom payment agreements have been made that are also fulfilled will in principle not be left unpaid.
Bankruptcy trustee or administrator
Due to the bankruptcy (or the application of the statutory debt rescheduling scheme; WSNP) you will no longer have access to your money and goods yourself.
The court appoints a trustee (bankruptcy) or appoints an administrator (WSNP). In the event of bankruptcy, the trustee manages and liquidates the “bankruptcy estate”. In a WSNP, the administrator does this.
More specifically, the administrator monitors the progress of the debt rescheduling scheme. Both, but in particular the trustee, monetize the assets of the bankrupt or sanitizer and divide the proceeds among the creditors according to the rules of the art. So difficult.
The major difference between bankruptcy and WSNP lies in the consequences thereof. If debts still exist after the liquidation of the bankruptcy, these debts (including interest) revive. A natural person (the legal name for “a person”) will then eventually get bailiffs on the doorstep again. On the other hand, after termination of a WSNP (if the sanction has not met all the conditions imposed on him or her), the creditors to which the WSNP applied cannot claim payment of those debts. If bankruptcy has been filed for a natural person, the Court will give him the opportunity to file a WSNP request first. This request must be made on time. A WSNP request can also be submitted during bankruptcy. So be well informed!
Because your debts (in practice) will expire if the WSNP was successfully declared applicable to you for three years, you must meet the necessary conditions before the Court allows you. The first step you need to take is to obtain a so-called art. 285 Fw statement. According to the Bankruptcy Act, the municipality of your place of residence issues this statement. In practice, the municipality outsources this authority (which is also a duty!) To a local debt counselor. He or she should investigate whether there is no other way to get out of the problematic debt situation. You should think of an amicable agreement or a compulsory agreement. Only if that proves impossible, Art. 285 Fw statement can be issued and an application can be submitted to the court to apply the WSNP. Many people experience this process as long. Six months is the rule rather than the exception. Fortunately, interim solutions are usually possible for urgent cases.
Debts in good faith
But also with art. 285 Fw you are not there yet. The Court will independently assess whether you also meet the other conditions for admission to the WSNP. These conditions are mentioned in art. 288 Fw.
In practice, the most important condition is that the petitioner “has acted in good faith with regard to having his debts incurred or left unpaid in the five years prior to the day on which the petition was filed”.
Because this so-called open standard has caused a great deal of uncertainty in the past, the Courts eventually drew up the “National assessment criteria for admission to debt restructuring scheme”. In addition to the legal criteria, you must therefore also meet the latter criteria. more about the ‘government claim’