I am holder of bonds of a company which was declared bankrupt by a court. Now is the time to submit claims against the bankrupt entity to the receiver. The problem is that the modest size of debtor’s assets will probably not be sufficient to cover the costs of liquidation proceedings. Is it possible, in such circumstances, that the court would order me, as a creditor, to pay an advance towards bankruptcy proceedings, Antoni asks. The answer is of key importance to me as my claim is rather small. The value of bonds was PLN 5,000, our reader adds.

Submission of claims is a very important step to be performed by a creditor. It is a prerequisite of active participation in bankruptcy proceedings concerning a business entity and therefore of asserting one’s claims. A holder of non-redeemed bonds issued by a company in financial difficulties should follow Monitor Sądowy i Gospodarczy [Court and Business Journal] (available at ems.ms.gov.pl) as it is the journal which publishes communications concerning the possibility to submit claims in bankruptcy proceedings. The action itself should be made on an official form, the template of which has been determined by a regulation of the Minister of Justice. The document should be made in two copies and filed to the court in charge of the proceedings together with evidence confirming the existence of the claim. Both submission of claims and participation in proceedings are, in principle, free of charge, as they are financed from the liquidated company’s assets. Nonetheless, in certain cases, the creditor may be charged with the costs incurred in the course of proceedings.

The first case relates to creditors who initiate bankruptcy proceedings. In such cases, apart from the fee for filing the petition in bankruptcy (PLN 1,000), the entity asserting its claims must also pay an advance towards the costs of proceedings. The amount due corresponds to one average monthly salary in the commercial sector in the third quarter of the year preceding the year when the petition is filed. If the advance is not paid, the court will reject the petition, having sent a notification concerning the necessity to pay the amount due.

The second case when costs may arise is failing to meet the submission of claims deadline. The deadline to perform this action is usually 30 days from the publication in Monitor Sądowy i Gospodarczy of the announcement concerning the possibility to submit claims against the bankrupt entity. Any delay in this respect, even if it arises without the creditor’s fault, will cause them to be charged with the costs, if any, resulting from the delay. This refers to situations when, for instance, a delay causes the receiver to perform additional work for which he/she should be remunerated. If this is the case, the judge in charge of the proceedings may obligate the creditor to pay an advance towards the said additional costs under the pain of rejecting the submitted claim.

The third case when a creditor may be required to participate in the costs of bankruptcy proceedings against a debtor is when, at the procedures stage, it transpires that the bankrupt entity’s assets are insufficient to cover the costs of such proceedings. However, this does not concern a simple shortage of assets but a case when the assets are difficult to monetise (see the expert’s opinion). This means that if the bankrupt entity has no assets at all, as our reader suspects, the proceedings will be discontinued. Therefore, Antoni does not need to worry about being charged with any costs. He may submit his claim without hesitation. Perhaps the receiver will find some hidden assets of the bankrupt company, which will allow not only to finance the proceedings but also to, at least partially, satisfy the creditors.

EXPERT’S OPINION - dr. Aleksandra Pokropek, attorney-at-law at FKA Furtek Komosa Aleksandrowicz

Bankruptcy law provides for two grounds for obligating a bankrupt entity’s creditor to pay an advance towards the costs of bankruptcy proceedings. However, both of them apply only if the bankrupt entity has “non-liquid” assets which may be monetised later during the proceedings and it is necessary to obtain cash. Therefore, creditors will not be required to pay an advance if it transpires, during the course of bankruptcy proceedings, that the bankrupt entity has no assets at all. In such cases, the proceedings are immediately discontinued. Creditors may be obligated to pay advances based on two grounds. Firstly, based on a resolution adopted by the board of creditors convoked by the judge-commissioner. Secondly, based on a decision of the judge-commissioner. If this is the case, the obligation to pay the advance will be imposed on the creditors who submitted the largest claims, whose total value constitutes at least 30 per cent of the sum of claims submitted by all creditors allowed to attend the board’s meeting. As regards minor creditors, it is practically more probable that they will be obligated to pay an advance based on a resolution adopted by the board of creditors. Minor creditors would only be obligated to pay by way of the judge-commissioner’s decision if, which is less probable, they were qualified to the group of major creditors representing at least 30 per cent of the sum of claims. Advance payment by a creditor is voluntary and not subject to compulsory execution (enforcement). The only sanction for non-payment is discontinuance of bankruptcy proceedings (the proceedings would be discontinued entirely, not only with respect to the creditor who did not pay the advance). What is important, if it transpires that, despite the fact that one or more creditors did not pay the advance, the amount obtained from others is sufficient to cover the costs of bankruptcy proceedings, it will not be discontinued. Therefore, the judge-commissioner must examine whether the part of advance paid is sufficient and whether the bankruptcy proceedings may continue.

Legal basis

Article 22a, Article 232-240 of the Bankruptcy and Rehabilitation Act of 28 February 2003 (Journal of Laws of 2015, item 233, as amended). Regulation of the Minister of Justice of 17 December 2015 regarding the determination of the written submission of claims template and the scope of information to be included in a submission of claims through the register (Journal of Laws of 2015, item 2240, as amended).

Edited by: Piotr Pieńkosz (DGP)