Commentary on the article “Submission of claims in the new version – selected issues”

Michał Węgliński, Notification of claims in a news version – selected issues, Restructuring Advisor No. 23 [1/2021].

Introduction

The article contains a discussion of the legal status after the changes introduced on March 24, 2020 in the field of filing claims in bankruptcy proceedings. The author presents a number of practical problems, focusing on possible mistakes of the participants of the procedure and their consequences.

Problem

The text attempts to answer the following questions:

• What is the significance of notifying creditors about the declaration of bankruptcy for the procedure of filing claims?
• In what procedure and time limit should the creditor submit personal rights and claims on the real estate (Art. 51 (5) of the BRL)?
• What are the consequences of an incorrectly filing a claim with a court instead of a trustee, when the notification should go to court? Is the time limit kept in this case?
• Is it possible to restore the deadline to supplement formal deficiencies or the fee for filing a claim when the receiver is the addressee of the notification?
• What is the purpose of the complaint against the act of trustee (Art. 49112 of the BRL) and how to prevent its abuse?
• Is a flat fee for late submission of claims a good solution?

Abstract

After the preliminary remarks referring to broad fragments of the justification of the bill, the author criticizes the view of the literature according to which the deadline for submitting a claim runs from the delivery of the bankruptcy notice to the creditor.

Then the text contains an analysis of the practice of submitting personal rights and claims on real estate – a matter that has not been included in the amendment and is now questionable. For this purpose, the text presents a research sample, resulting from the content of the announcements in the Court and Economic Monitor, which illustrates the discrepancies in the discussed area. This fragment ends with the author’s recommendations on the direction in which the practice should go.

Much attention was paid to the important issue of errors in the submission of claims – referral to the wrong authority or late submission. In this regard, the author analyzed both the provisions of bankruptcy law, civil procedure and the text of the regulation – the rules of procedure of common courts, looking for a legal basis for the court to submit the application to the trustee.

Next, the author examined the issue of meeting the deadline for submitting a claim in the event of its wrong referral. In this regard, he referred to the case law concerning a similar situation in the case of a complaint against a bailiff’s action and pointed out that such a notification in most cases will not be considered as filed in a timely manner. Later on, the admissibility and procedure for restoring the deadline for supplementing the declaration of claims are discussed. This problem has been discussed separately for entrepreneur bankruptcy and for simplified consumer bankruptcy.

The final part of the text presents the new institution of a complaint against the act of a trustee in consumer bankruptcy, the risk of its abuse and the means available to the trustee in order to avoid excessive length of proceedings. The conducted analysis leads the author to a negative assessment of the current shape of the act in this regard.

The fee for submitting claims after the deadline was also criticized, which – in the case of simplified consumer bankruptcy – is not, according to the author, an effective solution and does not fulfill the function entrusted to it. Only the sanction of not considering the application, the scope of which is limited, met with approval.

Summary

The article contains a broad discussion of various aspects of the amendment, which entered into force on March 24, 2020. The practical approach to the discussed problems means that the text contains many valuable tips for people applying the new bankruptcy law provisions. Apart from the proposed solutions for participants and bodies of the procedure, the text includes an assessment of the introduced statutory provisions. It indicates which of them deserve approval and which should be modified. The text contains valuable considerations for practitioners of bankruptcy law.