Deadlines, the content of the form, and the consequences of late filing
Filing a claim is the act by which a creditor enters pre-bankruptcy or bankruptcy proceedings. The Bankruptcy Act prescribes a form, mandatory content, and a deadline for it, and a filing submitted after the deadline is rejected by the court - without any examination of whether the claim is well founded.
Where the filing is submitted
In pre-bankruptcy proceedings, the filing is submitted to the competent unit of the Financial Agency on the prescribed form. In bankruptcy proceedings, it is submitted to the bankruptcy trustee on the prescribed form. In both cases, transcripts of the documents from which the claim arises must be attached.
The form is not a mere formality. A submission not made on the prescribed form will be rejected as inadmissible, unless it contains all the information that the form requires.
How the deadline is calculated
Court documents are served by publication on the courts’ e-Notice Board website and service is deemed effected upon expiry of the eighth day from the date of publication. This matters because the two deadlines are tied to different starting points: in pre-bankruptcy proceedings the 21-day period runs from service of the decision opening the proceedings, that is, effectively from the eighth day after publication, whereas in bankruptcy proceedings the 60-day period runs from the date the decision is published.
What the filing must contain
- identification details of the creditor and the debtor - company or name, registered seat, business address and personal identification number (OIB) for a legal person, or name and surname, address of residence and OIB for a natural person;
- the legal basis and the amount of the claim in euro - in pre-bankruptcy proceedings, the amount already due and the amount falling due after the opening of the proceedings must be stated separately;
- an indication of the evidence of the existence of the claim;
- an indication of the existence of an enforcement title - a detail that shifts the burden of litigation onto the contesting party;
- an indication of pending court proceedings - mandatory in bankruptcy proceedings;
- transcripts of the documents from which the claim arises.
Secured and separation creditors notify rather than file
Security rights and separation rights are not examined at the examination hearing. Such creditors notify the Financial Agency, or the bankruptcy trustee, of the legal basis of their right and of the part of the estate to which it relates. If a secured creditor also files a claim as an ordinary bankruptcy creditor, the filing must state the amount up to which the claim is not expected to be satisfied out of the security.
Employees, public authorities and lower-ranking claims
In bankruptcy proceedings the trustee draws up a list of all claims of current and former employees due up to the opening of the proceedings and presents the filing to them for signature. If an employee does not file a claim, the claim is deemed filed in accordance with that list. Such claims fall within the first higher rank of payment.
Claims of lower ranks of payment - interest accruing from the opening of the bankruptcy, costs incurred by an individual creditor’s participation, fines, claims for the debtor’s gratuitous performance, and loans replacing equity - are filed only upon a special invitation from the court, stating that the claim is of a lower rank and its position in that order.
What happens after the filing
A claim filed within the deadline is deemed established if it is not contested by the debtor, the commissioner, or another creditor in pre-bankruptcy proceedings, or if it is acknowledged by the trustee at the examination hearing and not contested by a bankruptcy creditor in bankruptcy proceedings. A challenge by an individual debtor does not prevent the claim from being established.
Contested claims are entered by the court in the table of examined claims, and by its decision the court determines in what amount and in what rank each claim is established or contested, and who is referred to litigation. Creditors whose claims are established are not separately notified. A party referred to litigation must commence it within eight days of the decision becoming final; failure to do so is deemed a waiver of the right to litigate. Where an enforcement title exists for the claim, it is the contesting party who is referred to litigation, and if that party does not commence it, the challenge is deemed withdrawn.
Practical notes
- Monitor the courts’ e-Notice Board - service is deemed effected on the eighth day after publication, regardless of whether the creditor actually saw the document.
- Do not wait until the deadline expires - the filing must be made on the prescribed form with attachments, and defects cannot be cured after the deadline.
- State the enforcement title if one exists - this shifts the burden of commencing litigation onto the contesting party.
- Report a security right both as a notification and as a claim - to the extent it is not expected to be satisfied out of the collateral.
- Check the rank of payment - a claim established in a lower rank is satisfied only after the preceding ranks have been paid in full.
If pre-bankruptcy or bankruptcy proceedings have been opened against your debtor, our office is available to prepare and submit the filing of your claim and any notification of a security or separation right, to contest other creditors’ filings, and to represent you in litigation concerning a contested claim.