A creditor who wants to participate in a bankruptcy proceeding has a certain amount of time to file his claim. What if he is late?
The purpose of bankruptcy proceedings is to satisfy creditors’ claims to the highest possible extent. As a rule, it is the creditor who decides whether he shall participate in the distribution of the bankruptcy estate funds. If it is necessary to determine the creditor’s claim and the creditor wants to participate in bankruptcy proceedings, pursuant to article 236 of the Bankruptcy Act, the creditor should, within a specified period of time, notify the trustee of its claim. The deadline is 30 days after the publication of the announcement of bankruptcy.
How to learn about the declaration of bankruptcy
Most creditors learn about the declaration of bankruptcy from the trustee’s notice. The trustee is obliged to indicate therein, first of all, the deadline for filing claims or the manner of their calculation. It is also important that the trustee informs about the necessity to pay the lump-sum costs of the bankruptcy proceedings which will result from the late filing of the claim.
The trustee creates the mailing list mainly on the basis of the list of creditors. Such an inventory is included in the bankruptcy petition. The mailing list shall be supplemented by those creditors whom the trustee has identified from documents relating to the debtor’s business, assets, accounts, other records maintained for tax purposes, and correspondence received from the debtor immediately after the commencement of the bankruptcy process.
A creditor may also learn about a debtor’s bankruptcy filing from the publicly available publication Monitor Sądowy i Gospodarczy (MSiG). On the other hand, from December 1, 2021, bankruptcy announcements should be sought in the National Debtors Register. However, only announcements made since December 1 will be found there. For individual creditors or even smaller entrepreneurs, daily searches of MSiG may be troublesome.
Theoretically, it might seem that every creditor will be timely notified about the bankruptcy declaration. But it is not so. It happens that the trustee’s notice reaches the creditor 30 days after the notice has been published. It also happens that a given creditor is not on the trustee’s mailing list at all. Then the creditor usually learns about the debtor’s bankruptcy by chance after several months of proceedings. Even in such a situation, a creditor may still file a claim.
Late filing of claims
However, the legislator has provided for a financial consequence for latecomers. Pursuant to Article 235(1) of the Act on Bankruptcy Law, a creditor who has filed a claim after the deadline set for this purpose shall bear the lump-sum costs of the bankruptcy proceedings resulting from this filing. He will be obliged to do so even if the delay was caused without his fault. Unless the late filing of the claim is the result of the trustee making a correction to a return or other such document involving a settlement.
The costs of bankruptcy proceedings are equivalent to 15% of the average monthly salary in the enterprise sector announced by the President of the Central Statistical Office. They do not include profit distributions in the third quarter of the previous year.
Currently, the lump-sum costs of the bankruptcy proceedings amount to PLN 805.60 (15% x PLN 5370.64). If they are not paid, the creditor will receive a summons to pay them under the pain of returning the claim application.
What not to do?
A creditor should not file a motion to restore the deadline for filing a claim. This can be done based on the provisions of the Civil Procedure Code (Article 168 § 1 of the Civil Procedure Code and Article 169 § 1 of the Civil Procedure Code in connection with Article 229 of the Bankruptcy Law). However, the provisions of the bankruptcy law contain autonomous provisions concerning the filing of claims. Therefore, it is not possible to apply the provisions of the Civil Procedure Code regarding the restoration of the time limit when filing claims. The judge-commissioner will dismiss such a motion. Among others, the judge-commissioner of the bankruptcy court in Wrocław ruled this way in one of our cases.
What is the time for a late filing of a claim?
However, a creditor should remember that whether he will participate in the plan of distribution of the bankruptcy estate funds depends on the time of his late filing. Legislator has defined certain time limits.
Generally, the actions already taken in the bankruptcy proceedings are effective towards the creditor and the filing does not affect the submitted plans of distribution. If its claim is recognized, it will only be included in the distribution plans of the bankruptcy estate funds drawn up after its recognition.
If, on the other hand, the order regarding the late filing of the claim has not been issued or has not become final by the time the bankruptcy proceedings are completed or discontinued, it shall be discontinued. A claim filed after the approval of the final plan of distribution of the funds of the bankruptcy estate shall be left without consideration.
In order to avoid the necessity to incur additional costs resulting from the late filing of the claim, it is advisable to determine with the trustee the current stage of the bankruptcy proceedings. It may turn out that despite filing, your claim will not be satisfied at all.
Simplified consumer bankruptcy
In this type of bankruptcy proceedings, the trustee does not make a list of claims, but takes into account the claims reported in a draft payment plan. Such a plan is first delivered to the bankrupt and the creditors, and then submitted to the bankruptcy court. Art. 491(14)(6) of the act on bankruptcy law states that a claim submission after the trustee submits a draft plan of repayment of creditors shall be left without consideration.
Upon the expiry of 30 days from the announcement of the decision on bankruptcy declaration, rights and personal rights and claims lying on the real estate belonging to the bankrupt shall not be reported if they have not been disclosed by an entry in the land and mortgage register. Article 51 clause 1 point 5 of the Act on Bankruptcy Law provides for the rigor of losing the right to invoke them in bankruptcy proceedings.
However, a creditor who has claims secured on the debtor’s assets, before starting the process of late filing of claims, should establish with the trustee whether his claim is not already listed. Such claims are entered ex officio. The above also applies to a creditor who is a creditor solely in rem.