Bulk loan
Debtor-in-possession financing are in insolvency proceedings by the liquidator in mass creditors such as banks , government development banks , suppliers or customers received loans to business continuity by ensuring the solvency . It is a special form of mass liabilities .
Legal bases
The bankruptcy code that was in force until 1999 already included the term “mass debts” in Section 59 of the bankruptcy code (KO). In the Insolvency Code (InsO) that has been in force since then, however, the legislature has refrained from a legal definition of the term "mass liabilities", but requires it to be known in Section 61 InsO. According to this, all liabilities of the insolvent company taken on by the insolvency administrator are to be regarded as mass liabilities. Accordingly, a claim registered in the insolvency table cannot be a mass claim. Mass claims are therefore claims from contractual partners, in particular from the purchases of raw materials / goods for the mass made by the insolvency administrator, from bill and check obligations of the administrator and from loans taken out by him. In the event of a dispute, the mass creditor only has to prove that the mass loan was granted for the stated purpose with the approval of the administrator, but not that the mass loan was also used for the stated purpose. Mass claims are privileged compared to other insolvency claims, since the mass creditor does not have to count the insolvency quota.
According to § 53 InsO, the loan repayment (if there is a corresponding bankruptcy estate) of bulk loans (since they are bulk liabilities) takes priority over the claims that were made before the bankruptcy was opened. In the case of the continuation of the company, bulk loans turn into regular claims against the company when the insolvency proceedings are ended.
The insolvency administrator has to satisfy the mass liabilities according to the order of precedence regulated in § 209 InsO.
Foreclosure measures with regard to claims from bulk loans are fundamentally inadmissible according to Section 90 InsO in the first six months after the opening of insolvency.
From the point of view of the mass creditors, the mass credit is a loan within the meaning of Section 488 (1) BGB ; at banks, like all loans, mass loans fall under the definition of credit in Section 19 (1) KWG and are subject to the same regulatory reporting requirements.
Liquidator's Liability
The Federal Court of Justice had already warned mass creditors on the basis of the old bankruptcy code. The business partners of the bankruptcy trustee are warned by the opening of bankruptcy as such and must be aware of the risk of mass inadequacy of their claims. Only if the bankruptcy trustee has recognized or was able to recognize by applying the due care required in the traffic that the business is not even generating its expenses and the existing assets are not sufficient to cover, he is liable according to § 82 KO for the nevertheless justified debts.
This case law of the BGH, which hardly protects mass believers, has therefore been replaced by the new insolvency regulation. In Section 61 InsO, the insolvency administrator's liability is increased for debt that cannot be repaid in full from the bankrupt's estate (so-called insolvency). According to this, the administrator is obliged to pay damages to the mass believer, for which the mass believer must prove breach of duty to the administrator.
In order to tighten liability, § 61 sentence 2 InsO even uses the technical means of reversing the burden of proof , according to which the personal liability of the insolvency administrator in the event of mass inadequacy is the rule. If a mass believer fails with his claim, it is already assumed at the time of its occurrence that this failure was more likely than the opposite. The insolvency administrator can dispel this presumption by proving the opposite, or at least exonerate himself with the proof that he was unable to recognize the presumed mass inadequacy. The administrator is therefore liable if he cannot exonerate himself from the allegation that he was able to recognize when establishing the mass liabilities by choosing to fulfill the contract in accordance with Section 103 (1) InsO that the mass would probably not be sufficient to meet the liabilities. Liability already arises if the claim of the mass creditor cannot be met when due.
The insolvency administrator must keep himself informed about the status of the coverage of the mass liabilities by submitting continuous liquidity planning and status overviews. However, he is not liable if, at the time of the establishment of the mass liability, he created a carefully considered liquidity plan - from the point of view at the time - based on relevant connecting facts, which could be expected to meet the due mass liability. An unpredictable misjudgment is also not contrary to duty.
In order to exclude liability, the insolvency administrator is required by case law to derive a reliable prognosis based on an appropriate interim balance sheet, the proven order and earnings situation and a carefully worked out insolvency plan that the mass loans taken can be repaid.
Special risk
Nevertheless, mass creditors are exposed to a particular risk of repayment. You must be able to rely largely on the administrator's prognosis that your mortgage loans can be repaid in accordance with the contract along with interest and are not subject to the risk of insufficient assets. Because only the insolvency administrator has a complete overview of the extent of the mass and the amount of the mass liabilities. His liability only begins when the occurrence of the mass inadequacy is more likely than the non-occurrence.
The legislator has justified the stricter liability of the administrator by stating that the contractual partner would face an increased risk in the event of insufficient mass, which goes far beyond the general dangers of concluding a contract with an insolvency administrator. The stricter liability is intended to reduce the risk that third parties would no longer be willing to enter into business relationships with the insolvent company. The continuation of the company would be made more difficult.
The Solvency Ordinance has made it much more difficult for banks to grant bulk loans - insofar as they remain unsecured. Assuming that a large number of bulk loans would be granted to companies with very poor ratings, these bulk loans must be backed by 150% equity. The formally tightened liability of the insolvency administrator does nothing to change this.
However, it is doubtful whether this formally tightened liability materially benefits the mass believer. As a rule, it can be assumed that the amount of the mass loans far exceeds the liable private assets of the insolvency administrator, so that the possible claims for damages should not be covered by the private assets. This leaves the mass creditor to consider whether to grant a company in a critical situation mass loans which, taking into account any loan collateral, are subject to a privilege under insolvency law.
Individual evidence
- ↑ BGH ZIP 2004, 1109.
- ^ BGH, judgment of December 4, 1986, Az. IX ZR 47/86, Leitsatz, NJW 1987, 844; BGH, judgment of October 12, 1989, Az.IX ZR 245/88, Leitzsatz, NJW-RR 1990, 94.
- ^ BGH, judgment of May 6, 2004 , Az. IX ZR 48/03, full text.
- ↑ Münchener Commentary / Brandes, InsO, §§ 60, 61 marginal numbers 33 to 35.
- ↑ OLG Hamm , judgment of November 28, 2002 , Az. 27 U 87/02, full text.
- ^ BGH, judgment of December 17, 2004 , Az. IX ZR 185/03, full text
- ↑ Munich Commentary / Brandes, InsO, §§ 60, 61, marginal note 37 with further references
