Bankruptcy rate
The insolvency rate is a term from German insolvency law .
definition
The insolvency rate quantifies the percentage of the satisfaction of the creditors after the conclusion of the insolvency proceedings. So it says what percentage each creditor receives on the determined share of the claim filed by him . It is calculated from the ratio of the distributable insolvency estate to the recognized insolvency claims. At the same time, the quota provides information about the bad debt value. The distributable bankruptcy estate is the amount of cash that is left after the process is completed and all legal costs (such as legal costs and administrative fees) have been paid.
Example:
A creditor has registered € 1,000, of which the administrator has established € 850 (the remainder was disputed, e.g. due to lack of evidence).
The total available funds result in a quota of 13%. The creditor receives 13% of € 850 on his claim, i.e. € 110.50.
Advance distributions ( Section 187 (2 ) InsO )
A quota can also be calculated during an ongoing - i.e. not yet completed - procedure. In this case, however, the administrator must take into account various so-called provisions ( § 191 ff. InsO). He is therefore not allowed to use all available resources to determine the quota. Provisions must be made for
- the court costs ( Section 54 )
- the administration fees (ibid)
- All other bulk costs (i.e. costs and fees that arise in the ongoing process)
- Disputed claims (a creditor could file a declaratory action and win it, the administrator must then subsequently determine further amounts; it must therefore be ensured that the subsequent determination does not put the obligee in a worse position than creditors whose claims were previously determined, § 189 Paragraph 2 InsO).
The final quota can actually only be determined at the end of a procedure; before that, it can at most be estimated based on the current documents. In insolvency proceedings, there is often the situation that the available funds simply do not justify the expense of distributing a down payment. When distributing down payments, an insolvency administrator must also take into account that such a payment also incurs administrative costs on the part of the creditors (especially in accounting). So if only comparatively small amounts can be distributed, a down payment should be avoided.
Until 2014 it was legally regulated that an annual distribution had to be made in consumer insolvency proceedings. This led to the very undesirable effect that distributions were often carried out in which the creditors only received individual cents. Such quota payments in the cent range - which were only carried out for legal reasons - ultimately increased the creditors' loss because they incurred additional administrative work. With corresponding changes in the law, the administrator has since then been free to refrain from distributing the down payments in such cases and only to carry them out when a sufficient amount justifies a distribution. At the latest at the end of a procedure, the distribution takes place, which in unfavorable circumstances can actually be in the cent range.
Special features when calculating the quota
Calculating a bankruptcy rate cannot be done by simply applying a formula. A so-called zero point search is almost always necessary. This is due to the fact that calculations are theoretically as precise as desired, but payments can only be made to the cent. Thus, depending on the number of decimal places in the calculated rate, rounding can lead to inconsistencies. Example:
- There are three creditors who have established claims of € 687.51, € 769.73 and € 1,275.67.
- The sum of the established claims is therefore € 2,732.91.
- The available mass to be distributed is € 963.97.
- The ratio is therefore: 963.97 / 2732.91 * 100 = 35.27%
- This results in payout amounts of € 242.50, € 271.50 and € 449.96 for the three creditors. So in total € 963.96.
- In this case, there is one cent left that cannot be distributed.
The maximum amount that can be left over from such a calculation is: Number of payees (payment creditors) minus 1 in cents. From a purely statistical point of view, a distribution leaves the number of payees / 2 in cents. In the case of particularly unfavorable rounding constellations, it can even result that more money would have to be paid out than is actually available. This is illustrated in the following example:
- There are three creditors who have established claims of € 629.59, € 719.73 and € 1,375.67.
- The sum of the established claims is therefore € 2,724.99
- The available mass to be distributed is again € 963.97.
- The ratio is therefore: 963.97 / 2724.99 * 100 = 35.37%
- This results in payout amounts of € 222.72, € 254.61 and € 486.65 for the three creditors. So in total € 963.98
- In this case, a cent more would have to be distributed than is actually available.
In the context of a zero point search, however, it turns out that with 4 digits behind the decimal point a percentage of 35.3751 delivers a better result. The existing mass can thus be completely distributed. Comparing the two percentages also shows that the percentage that works cannot be determined by rounding the percentage that does not work.
If there are a large number of creditors, the calculations will definitely result in deficits of a considerable magnitude. The corresponding special programs therefore have special arithmetic modules - some with zero point searches - in order to minimize errors as far as possible.
The legislation does not include any consideration of such rounding problems; it simply assumes that there is always full and fair distribution. However, this creates significant legal problems. On the one hand, the insolvency administrator, has no interest to pay out more money than is available because it those payments from his own pocket afford would ( § 60 et seq. InsO), on the other remaining amounts can hardly legally compliant housed are. The procedure of some local courts to transfer the remaining amount to the court was put to a halt by a BGH judgment. The insolvency administrator is also not allowed to add these funds to his remuneration.
To solve this immanent problem, a procedure has been established over the years that is neither legally compliant, fair nor mathematically correct, but which solves the problem in an almost invisible procedure: The remaining amounts are distributed to the creditors cent by cent. If this distribution is made for the largest sums, starting with the smallest amounts, the effect is almost invisible even when manually recalculating the quota.
In the case of down payment distributions, the errors of individual distributions can add up in considerable orders of magnitude. Partial payments also involve the problem that the amounts may have changed in the constellation of the established claims compared to the last distribution (subsequent determinations, withdrawals from determinations). This means that although all creditors receive the same quota (in percent), the previous events (i.e. the payments from a previous distribution) must be included. As a result, creditors in these constellations receive more or less money than the percentage difference calculation to the previous distribution would result. However, a manual recalculation of the corresponding printouts is very time-consuming. Insolvency management systems that work in this way level out inaccuracies or changes in amounts over and over again.
Amount of the quota in Germany
In an investigation of over 15,000 insolvency proceedings in North Rhine-Westphalia , which were completed by the end of 2008, it was found that in two thirds of the proceedings the distributable amount was so low that the creditors received nothing after deducting the costs. The rate for the other proceedings was 5.4%.
literature
Kranzusch, P .; Icks, A .: The rates of insolvency creditors in regular and insolvency plan proceedings - results of insolvency proceedings after the insolvency law reform, Bonn 2009.
Individual evidence
- ↑ The quotas of bankruptcy creditors in regular and insolvency plan proceedings. (No longer available online.) Institute for SME Research Bonn, archived from the original on January 4, 2017 ; accessed on January 4, 2017 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
