home

| Mobility Management | Waste Management |
Nature & Soil Management |
 
Bankruptcy proceeding

An important role in the bankruptcy proceedings assigned to the law on bankruptcy creditors meeting, formed in order to protect the interests of all creditors.

Interim Manager determines the date of the first meeting of creditors and notify all persons entitled to participate in the first meeting of creditors: Identification of the bankruptcy creditors (creditors, who applied on time and in accordance with the law entered in the register of creditors claims), the competent authorities, representative, employees of debtor companies and others.

Decisions of the first meeting of creditors on the issues put to the vote shall be taken by a majority of the total voting power of the bankruptcy creditors, tax and other authorized bodies. When the bankruptcy of natural monopolies fuel and energy complex of the first creditors' meeting decides to appeal to the arbitration court to declare the debtor bankrupt and the opening of bankruptcy proceedings is not less than 3/4 of the votes of the total number (it was in force before 1 January 2005).

The first meeting of creditors - a very important step for the debtor. The purpose of the meeting is to determine the fate of the debtor's creditors further. Interim Manager at the meeting informs creditors data analysis of the financial condition of the debtor outlining the prospects of ability or inability to restore solvency. However, the conclusions of the interim manager are advisory in nature and are not binding on creditors. Lenders may have their own opinion on the possibility or impossibility of rehabilitation of the debtor, does not coincide with the results of the analysis.

Minutes of the first meeting of creditors is a timing control to the arbitration court no later than 5 days from the date of the first meeting of creditors.

The last point in the process of observation puts the arbitral tribunal: it based on the decision of the first meeting of creditors, or guided by the law of bankruptcy decides to declare the debtor bankrupt and the opening of bankruptcy proceedings, or issue a ruling on external administration or claims settlement.

Since the recognition of the arbitral tribunal debtor bankrupt and the opening of bankruptcy proceedings or the introduction of financial rehabilitation or external control, or approval of the settlement agreement is terminated observation.

Enterprise Bankruptcy

Missteps in economic activity (a failed marketing, unnecessary costs, or even fraud losses) can lead a company to bankruptcy debts. Insolvency proceedings in such cases considered at the request of the debtor or a creditor in the bankruptcy court. The institution of bankruptcy originally introduced for good purposes, such as the withdrawal of the company from the financial "abyss", restoring solvency and regular tax deductions. But most of all arbitration procedures of bankruptcy are used for purposes contrary to morality and the rule of law: for a hostile takeover of the enterprise, or simply weaning.

Bankruptcy law, possibly far from perfect, but it is - the only tool that takes into account the overall interests of all parties of material obligations, and therefore it should be respected and observed.

The total production of insolvency are as follows: the company must first be "healthier", and if it is impossible - to sell and liquidate.

Arbitration Court shall appoint the following procedures in its production (in order):

. Monitoring;
. Financial recovery;
. External control;
. Bankruptcy proceedings;

Insolvency law may also provide for other procedures. At the moment it is a settlement agreement that may be entered into between the creditor and the debtor at any time proceedings (other than the bankruptcy proceedings).

Arbitration proceedings in bankruptcy can be filed the arbitration court in whose territorial jurisdiction the debtor is located - that is the court at the place of registration of an entrepreneur or organization (under Article 29 of the Federal Law "On Insolvency (Bankruptcy)").

They are brought to the appropriate application (the contents of which can be discussed with an attorney with experience in the field of insolvency processes) of the person who has reason to sue. This may be the debtor itself (the debtor), the creditor (the claimant), the tax inspectorate, the public prosecutor, a representative of the working staff of the enterprise. Request for recognition of the debtor bankrupt studied judge from one to three months from the date of receipt of the application for arbitration.

After making a statement to his production arbitral tribunal shall determine the procedure to enter observations, if the debtor is not responsible for its obligations within three months on the total amount of more than 300 thousand dollars (but for the bankruptcy of certain types of companies and other amounts provided as another procedure). If an entity is recognized unable to meet its obligations, the court enters bankruptcy proceedings and claims of creditors by the sale of property of the debtor. The process of bankruptcy in the event of liquidation ends judgment declaring the debtor insolvent (bankrupt), which provides guidance on the recognition of this fact, the appointment procedures for the implementation of the property, as well as the appointment of an administrator.

All legal costs (mainly a payment of services of arbitration managers, state tax and legal services) will be recovered from the liquidated company.

In bankruptcy proceedings involved any property of the debtor, which was used by him in economic activity. This can be:

. Buildings, structures, buildings;
. Land;
. Technical means of production;
. Vehicles;
. Raw materials;
. produced or traded goods;
. Property rights (shares in the authorized capital, shares, bills, debts);
. Intellectual property (business name, registered trademarks, know-how, licenses, etc.).

If the activities of the company under a compulsory license is a privilege arises at the purchaser to obtain such a license. But now that the activities of many industries goes on self-regulation (creation of self-regulatory organizations), the practice of transition of membership in the SRO is not yet well established.

The procedure for sale of an enterprise procedural settled the Federal Law "On Insolvency (Bankruptcy)". Sale proceeds by open bidding (usually). Manager appointed by the court shall serve on the organization of processes, provides a procedure for open, transparent, fair and transparent transactions.

Sami transactions are carried out under the conditions prescribed by the Civil Code for transactions with an enterprise's assets. To the company apply the legal status of immovable objects. To assess the value of the enterprise need his score, which takes into account the cost of real objects and debt obligations of the enterprise.

in the prescribed order of the Ministry of Finance number 49 rules in the inventory are accounted for:

. Fixed assets. This building, buildings, capital goods, machinery, mechanical tools, vehicles;
. Intangible assets. This is intellectual property of objects which was mentioned earlier. Common mode of such objects is set in part 4 of the Civil Code;
. Capital investments - is the amount spent on the construction and maintenance of "unfinished" (construction projects, undelivered and not placed in service);
. Inventories (packaging materials);
. Finished products;
. Cash (cash on hand, bank accounts, bonds).

Bankruptcy Case

Bankruptcy cases are considered by the arbitral tribunal.

Unless otherwise provided by this Federal Law, the production of the bankruptcy proceedings may be initiated by the arbitral tribunal, provided that the claim against the debtor - legal entity together constitute not less than one hundred thousand, to the debtor - citizen - not less than ten thousand, and there are signs of bankruptcy, established by Article 3 of this Federal Law (as amended. Federal Law N 296-FZ).

For initiation of bankruptcy proceedings at the request of a bankruptcy creditor, as well as at the request of the authorized body on monetary obligations are taken into account the requirements confirmed by a legally effective court decision, the arbitral tribunal, the arbitral tribunal (in red. Federal Law N 296-FZ) .

Requirements of the authorized bodies of mandatory payments are taken into account for the initiation of bankruptcy proceedings, if such requirements are confirmed by the decisions of the tax authority, the customs authority to recover the debt through cash or other property of the debtor or has entered into force a court decision or the arbitral tribunal ( in the red. Federal Law N 296-FZ).

Bankruptcy of individual

Formal bankruptcy proceedings both legal and physical persons in USA regulated by the Federal Law "On Insolvency (Bankruptcy)". According to this document, any person has the ability to declare bankruptcy if he is unable to repay debts.

Bankruptcy allows a borrower to "start from scratch" - after the creditors will receive all that he can pay one way or another, his debts are canceled.

The text of the law states that a citizen is considered not able to satisfy the claims of creditors on monetary obligations, if the amount exceeds the value of his property, and delinquency in payments of more than three months. To excite the bankruptcy case of a natural person arbitral tribunal claim against the debtor should not be less than 10 thousand dollars.

The debtor may apply himself to initiate bankruptcy proceedings in the Court of Arbitration in the community. In this statement, in particular, should be given the amount of the claims of creditors with which the consent of the debtor, and the rationale for it is impossible to satisfy these requirements.

The application may be accompanied by a plan of debt repayment. If the creditor does not object, the arbitral tribunal may approve the plan. After which the debtor is obliged to implement the approved plan. Then the production of the bankruptcy proceedings shall be suspended, but not more than three months.

Applications may be submitted by the debtor before the actual bankruptcy, if it is obvious that it can not meet its obligations to the lender on time. According to the text of the law, if the debtor filed a similar application, being able to meet its obligations to the lender, he is liable for damages related to the initiation of bankruptcy proceedings.

Apply to the Court of Arbitration and the lender can. The application may be based on the combined nasal several liabilities (multiple loans in a bank) or be one of several lenders (several loans in different banks). Debtor in case of disagreement shall be entitled, within ten days after receipt of the determination of the application to the arbitral tribunal to dispatch a review, providing evidence the applicant's claims unfounded.

By the way, when filing for bankruptcy, according to the current law, a debtor transaction undertaken by them for the last year related to the transfer of property to spouses or close relatives are recognized as null and void; property is considered to belong to the debtor. Return obtained profits according to the procedure established by the law of priority creditors.

According to the law on enforcement proceedings, from the debtor primarily charge a cash. However, in situations bankruptcy is assumed that there are none. In this case, the bailiffs to recover property of the debtor.

If the property is jointly owned (eg, spouses), recovery is subject to only a portion of the debtor. For example, if we are talking about the apartment, in the case of bankruptcy of one of its owners have to sell in order to buy an apartment a smaller area for the second owner, or change to a lower surcharge.

If the debtor is an individual entrepreneur, his state registration as such becomes invalid from the date the bankruptcy. In addition, he canceled all the issued license.

However, recovery is not subject to any property. Under the Civil Procedure Code, to that does not apply, for example, housing, unless it is for the debtor only suitable for living, household furnishings, clothing and shoes, prizes and state decorations. If the debtor owns an apartment, bought on credit, which is not subject to legal action, and credit has not yet been repaid, it is also not to be recovered.

Bankruptcy case must be examined by the arbitral tribunal no later than seven months from the date of receipt of an application for a bankruptcy. All court costs are borne by the debtor and shall be reimbursed out of the lineup. However, the settlement agreement between the debtor and creditors may provide a different order of distribution costs.

At the same time, the law states that it provided the provisions of the bankruptcy of citizens who are not individual entrepreneurs, shall enter into force only in conjunction with appropriate amendments to the federal laws. This means that the actual effect of the bankruptcy law in USA currently on individuals does not apply.

Ministry of Economic Development in 2004 began to prepare a new law prescribing the procedure bankruptcy of individuals. In view of the economic crisis and the preceding mass entrainment credits resolution of this issue has become particularly topical. In May 2009, the Ministry presented the next version of this document, the authors called "On rehabilitation procedures applicable to citizens of the debtor."

The bill as the main tool for solving problems of the debtor and the creditor in case of inability to pay the loan provides for the restructuring of debt. Doing this is offered in accordance with the plan proposed by the debtor and approved by the arbitral tribunal, for a period not exceeding five years. The reason for going to court can be a six-month delay in the payment of debt.

Moreover, the restructuring plan could be adopted without the consent of the creditor if it can be used to fully satisfy the claims of creditors. A similar measure is provided in the "Bankruptcy Law", but in the version proposed by the Economic Development Ministry, the whole procedure is spelled out much more.

The new document proposes to increase the threshold for the minimum amount of debt to 50 thousand dollars. At the same time claiming to restructure loans the debtor will have to prove in court the existence of a steady income.

The authors of the bill believe that restructure debt to the bank is more profitable than to take away from the debtor's property whose value is likely not cover the entire debt. Bank at the time of restructuring receives the balance of "fresh" loan amount for which will not be delayed for some time, even if the debtor in the same hopeless as it was before restructuring. In terms of reporting and provisioning such a situation the bank is preferred.

After the implementation of the plan of debt restructuring former debtor is discharged from debts. However, over the next five years when applying to a credit institution has no right to hide the fact that resorted to debt restructuring.

If the debtor for one reason or another failed to fulfill obligations under the debt restructuring plan, or a plan has not been adopted (for example, because the debtor has no permanent source of income), the arbitral tribunal recognizes a debtor bankrupt. In this case, his property is sold, the proceeds are divided among the creditors in proportion to the amounts of their claims.

Ministry of Economic Development proposed a draft law on the whole repeats the provisions of the current law, but it spelled out more details of the procedure bankruptcy of individuals compared with the current bankruptcy law. In addition, it is assumed that in the event of bankruptcy law individuals finally become a reality. Get professional bankruptcy advice from MyBKHelp
   
top  

 

Traject VIA Ökoinstitut Alto Adige Stadsland FGM-AMOR