Bankruptcy Act

TITLE III DEBT REPAYMENT SCHEME FOR NATURAL PERSONS

Chapter 1 Judgment ordering the Application of the Debt Repayment Scheme

Article 284 Request for the application of the Debt Repayment Scheme
- 1. A natural person may apply for a court order declaring, on his behalf, the application of the Debt Repayment Scheme, if it is reasonably foreseeable that he will be unable to pay his debts as they fall due or if he is in a situation in which he has ceased to pay his debts as they fall due.
- 2. He will adress himself for such purpose by petition to the District Court designated in Article 2, which petition has to be signed by himself or by a representative authorized by procuration (power of attorney). If the authorised representative is not registered as an advocate (solicitor admitted to the Bar), a document evidencing the procuration (power of attorney) must be lodged with the petition. Article 4, paragraph 4, shall apply accordingly.
- 3. A married debtor or a debtor who has entered into a registered partnership may only file a petition on his own behalf with the cooperation of his spouse or registered partner, unless any form of community of property is excluded between the spouses or registered partners.
- 4. A petition as referred to in paragraph 1 may be filed also on behalf of a natural person by the College of Mayor and Aldermen of the municipality where this natural person has his residence or place of abode.
- 5. The Debt Repayment Scheme for Natural Persons cannot be declared applicable to an insurer as meant in Article 213, nor to a credit institution as meant in Article 212 under (a).

Article 285 Formal requirements for a request for the application of the Debt Repayment Scheme
- 1. The petition, or the ancillary documents appended to it, shall include:
a. a list as referred to in Article 96;
b. a list of the assets of the debtor, with mention of possible pledges and mortgages taken out on these assets that might be exercised in respect of such assets;
c. an itemised list of the income of the debtor, howsoever named and irrespective of the legal basis on which that income usually is acquired or might be earned, with mention of the reasonably foreseeable changes in it during the next three years;
d. an itemised list of the fixed expenses of the debtor;
e. if the debtor is married or has entered into a registered partnership, a list of the information referred to under point (b) and (c) with regard to the spouse or registered partner;
f. a reasoned statement issued by the College of Mayor and Alderman of the municipality of the residence or place of abode of the debtor, confirming that there is no realistic possibility of an extra-judicial debt rescheduling, and the extent to which the applicant is able to settle his debts. The College of Mayor and Aldermen may delegate this power to a municipal credit bank as referred to in the Financial Services Act or to a natural person or legal person designated by Article 48, first paragraph, under point (d), of the Consumer Credit Act, or categories of such designated natural persons or legal persons;
g. a list of the nature and amount of the claims with respect to which the debtor has commited himself as surety or otherwise as co-debtor;
h. if the debtor has offered his creditors an extra-judicial debt rescheduling scheme which is not accepted, the content of the draft of that scheme, the reasons why it was not accepted and the (financial) means by virtue of which the creditors would have been satisfied if that scheme had been accepted;
i. a list with other data that are important to provide a most accurate picture of the debtor’s state of income and property (assets) and of the possibilities of debt repayment.
- 2. The College of Mayor and Alderman, a delegated credit bank or a for this purpose designated natural person or legal person is obliged to cooperate in the issue of lists referred to under (e) of paragraph 1.

Article 286 Availability of the petition at the office of the clerk of the court
The petition with ancillary documents referred to in Article 285, paragraph 1, shall be deposited at the clerk's office of the District Court and shall be available for public inspection at no costs as of the day of the court order in which the request for the application of the Debt Repayment Scheme has been awarded. No costs shall be charged for depositing these documents.

Article 287 Judgment on the request for the application of the Debt Repayment Scheme
- 1. With the utmost expedition the District Court shall render its decision on the petition. The decision shall be made in the from of a judgment. The application of the Debt Repayment Scheme shall take effect from the beginning of the day on which the court has ordered such application.
- 2. If no data as referred to in Article 285, paragraph 1, are provided in or simultanously with the petition, the District Court may grant the debtor no more than one month to provide the missing data after all. The clerk of the court shall, without delay, inform the body or person meant in Article 285, paragraph 1, thereof. When, after the expiration of this period, necessary data are still missing, the debtor’s petition shall be declared inadmissable (non-suit).
- 3. The judgment referred to in paragraph 1 shall include the appointment of one of the members of the court as magistrate (''rechter-commissaris'') and the appointment of a legal administrator (bewindvoerder).
- 4. In urgent cases the District Court is authorised, in view of the interests of parties, to order provisional measures which are enforceable immediately, without prejudice to any possible legal remedy or action. Such provisional measures will be requested for in the petition or, if that has been lodged already, by separate petition. Articles 256, 257 and 258 of the Code of Civil Procedure shall apply accordingly. Articles 358 up to and including 362 shall apply to an appeal.
- 5. In its judgement referred to in paragraph 1, the District Court shall charge the legal administrator (bewindvoerder) with the opening of letters and telegrams addressed to the debtor for a period of thirteen months. During the application of the Debt Repayment Scheme the legal administrator (bewindvoerder) may request the magistrate (''rechter-commissaris'') to change this period or to charge him again with the opening of letters for a certain period.
- 6. If the petition was lodged by the College of Mayor and Aldermen on the basis of Article 284, paragraph 4, the District Court may only award it if the debtor has been called to court in order to be heard. This does not apply insofar the petition requests for the ordering of provisional measures which are to be enforceable immediately.
- 7. If the petition was lodged by the College of Mayor and Aldermen on the basis of Article 284, paragraph 4, and that petition or the ancillery documents appended to it do not contain all necessary data meant in Article 285, paragraph 1, then the District Court shall grant the College of Mayor an Alderman a period of one month to provide the missing data after all.

Article 287a Adoption of an extra-judicial debt reschedule scheme by the court
- 1. In the petition meant in Article 284, paragraph 1, the debtor may request the District Court to instruct one or more creditors, who have refused to cooperate in a debt rescheduling scheme that was offered to the creditors prior to the moment on which the petition was lodged, to agree with that debt rescheduling scheme.
- 2. The District Court shall immediately set the date, hour and place for the hearing where the debtor and the creditor or creditors to which the petition refers shall be heard, without prejudice to what is provided in Article 287, paragraph 2.
- 3. The clerk of the court shall by letter call the debtor to court for such hearing and shall call by registered letter the creditor or creditors to court for it, unless the District Court has ordered otherwise.
- 4. On the day of the hearing or, otherwise, at the latest eight days thereafter, the District Court shall give its decision on the request meant in paragraph 1. The decision is made in the form of a judgment.
- 5. The District Court shall grant the request if the creditor reasonably could not have decided to refuse to agree with the offered debt rescheduling scheme, taking into account the disproportionality between his interests in exercising his right of refusal and the interests of the debtor or of the other creditors who are harmed by his refusal. Article 300, paragraph 1, of Book 3 of the Civil Code is applicable.
- 6. When the District Court grants the request, it shall charge the costs of proceedings to the creditors who refused to agree with the offered debt rescheduling scheme.
- 7. When the District Court denies the request, it shall also decide on the petition for the application of the Debt Repayment Scheme if the debtor still upholds it.

Article 287b Provisional measures in the event of a threatening situation
- 1. Prior to the moment on which the request meant in Article 287a, paragraph 1, comes on for trial, the debtor or, when a petition as referred to in Article 284, paragraph 4, has been lodged, the College of Mayor and Alderman, may request the District Court by way of the petition meant in Article 284, paragraph 1, to order provisional measures if there exists a threathening situation.
- 2. By a threathening situation meant in paragraph 1 is understood a forced eviction from a dwelling, the termination of the supply of gas, electricity or water or the termination or rescission of a health insurance agreement.
- 3. Article 287a, paragraph 2, 3 and 4, is applicable.
- 4. The provisional measures serve to make Articles 304 or 305 applicable and to prohibit the termination or rescission of the health insurance agreement.
- 5. The provisional measurers are ordered for a period of at the most six months.
- 6. A municipal credit bank as referred to in the Financial Services Act or a natural person or legal person designited pursuant to Article 48, first paragraph, of the Consumer Credit Act, or categories of such designated natural persons or legal persons, who are implementing an extra-judicial debt rescheduling scheme on behalf of the debtor, shall deliver a report to the District Court after the provisional measures meant in paragraph 1 have ended.

Article 288 Grounds for awarding or rejecting the application of the Debt Repayment Scheme
- 1. The petition meant in Article 284, paragraph 1, shall be awarded only if it is sufficiently plausible:
a. that the debtor is not able to continue to pay his debts;
b. that the debtor has been in good faith with regard to the way in which his debts have come to existence and were left unpaid during a period of five years prior to the day on which the petition was lodged, and;
c. that the debtor shall properly perform the obligations arsing from the Debt Repayment Scheme and shall endeavour to acquire as much benefits on behalf of the liquidation estate as possible.
- 2. The petition shall, however, be rejected:
a. if the Debt Repayment Scheme already applies to the debtor;
b. if an attempt to reach an extra-judicial debt reschedule scheme has not been implemented by a person or institution as meant in Article 40, paragraph 1, of the Consumer Credit Act;
c. if the debtor has debts which result from a final and binding conviction as referred to in Article 358, paragraph 4, in respect of one or more criminal offences, which conviction has become final and binding (irrevocable) within a period of five years prior to the day on which the petition was lodged, unless the court has reasons to take a longer period into account, or;
d. if less than ten years prior to the day on which the petition was lodged, a Debt Repayment Scheme already has been applicable to the debtor, unless the application thereof was ended on the basis of Article 350, paragraph 3, under (a) or (b), or on the basis of Article 350, paragraph 3, under (d), for grounds which could not be attributed to the debtor,
- 3. In derogation from paragraph 1, under (b) and from paragraph 2, under (c), the petition shall be awarded if it is sufficiently plausible that the debtor has control over the circumstances which have been decisive for the fact that his debts came into existence or were left unpaid.
- 4. A petition for the application of the Debt Repayment Scheme may not be refused only on the ground that there is no or insufficient prospect that the creditors' claims will be paid in full or in part.
- 5. If the petition is rejected by the court, the debtor may not be declared bankrupt ex officio.

Article 289 Setting the date and place of a verification meeting
- 1. The judgment in which the application of a Debt Repayment Scheme is ordered, may also specify the date, hour and place of the verification meeting.
- 2. If the date, hour and place of the verification meeting have not been specified in the judgment referred to in paragraph 1, then they may be specified later by the magistrate ('rechter-commissaris'), either of his own motion (ex officio) or upon the request of the debtor or administrator.
- 3. If the court or the magistrate ('rechter-commissaris') has set the verification meeting, also the day will be specified on which at the latest claims must be submitted (presented) to the administrator.
- 4. There must be at least fourteen days between the date referred to in paragraph 3 and the date of the verification meeting.
- 5. A verification meeting shall not be held within two months after the date of the judgment in which the application of the Debt Repayment Scheme is ordered.

Article 290 Additional measures to safeguard the interests of creditors
- 1. The court which orders the application of the Debt Repayment Scheme may include in its order measures which it considers necessary to safeguard the interests of creditors.
- 2. The magistrate ('rechter-commissaris') may also order such measures while the Debt Repayment Scheme is applicable, upon a request of the administrator, one or more creditors or of his own motion (ex officio).

Article 291 Appointment of experts
- 1. The court may, in its order for the application of the Debt Repayment Scheme, appoint one or more experts who shall examine the state of the assets and liabilities within a period to be set by the court, which period, where necessary, may be extended, and which experts shall issue a reasoned report on their findings. Article 290, paragraph 2, shall apply accordingly.
- 2. The report shall contain a reasoned opinion on the reliability of the statement and records submitted by the debtor.

Article 292 Appeal and appeal in cassation
- 1. Creditors who are instructed by the court to agree with a debt reschedule scheme as referred to in Article 287a, paragraph 1, may lodge an appeal against this decision within eight days after the day on which that decision was rendered.
- 2. No appeal, appeal in cassation or other legal remedy is available for the creditors or any other interested persons against a decision of the court to order the application of the Debt Repayment Scheme.
- 3. Where the court has rejected the petition for the application of the Debt Repayment Scheme, the debtor may lodge an appeal against that decision within eight days after the day on which that decision was rendered. When the petition included as well a request as referred to in paragraph 1, this request will be put simultaneously to the Court of Appeal
- 4. An appeal as meant in the previous paragraph is made by means of a petition lodged with the clerk of the Court of Appeal which must be seized of the matter. The presiding judge shall immediately set the date and hour for the hearing which must take place within twenty days of the date on which the petition was lodged. The decision of the Court of Appeal shall be given no later than on the eighth day after that of the court hearing where the petition was discussed.
- 5. The debtor may, within eight days, lodge an appeal in cassation against the judgment of the Court of Appeal in which the petition meant in the first sentence of paragraph 3 or, where relevant, also the request meant in the second sentence of paragraph 3, has been rejected.
- 6. Where a petition of the creditors as meant in paragraph 1 has been rejected by the Court of Appeal, these creditors may, within eight days, lodge an appeal in cassation against that judgment.
- 7. Such appeal in cassation is made by means of a petition lodged with the clerk of the Supreme Court.
- 8. If the petition of the debtor has been rejected on an appeal or an appeal in cassation, the debtor may not be declared bankrupt ex officio.
- 9. If the application of the Debt Repayment Scheme is ordered for the first time on an appeal or appeal in cassation, the clerk of the involved court shall, without delay, so notify the clerk of the District Court where the debtor lodged his petition. Immediately after such notification the District Court shall appoint a magistrate ('rechter-commissaris') and an administrator.

Article 293 Publications to be made in the Government Gazette and to mail companies
- 1. The clerk of the District Court shall, without delay, publish in the Government Gazette: the judgment ordering the application of the Debt Repayment Scheme, the name, address and profession of the debtor, the name of the magistrate ('rechter-commissaris'), the name and address of the administrator or that of his office, and the dates, hour and place referred to in Article 289.
- 2. The clerk of the District Court shall, without delay, notify the mail transport company or mail transport companies that have been designated as provider of general mail services and other certified mail transport companies as meant in the Mail Act 2009 (‘Postwet 2009’) of the application of the Debt Repayment Scheme for Natural Persons. The notice shall mention the order (charge) referred to in Article 287, paragraph 5.

Article 294 Public registers kept by the District Courts
- 1. The clerk of each District Court shall keep a public register in which he registers, for each Debt Repayment Scheme separately, the following data in the following sequence, with mention of the date of registration:
a. the extract from the judicial decisions for the application of the Debt Repayment Scheme and its termination;
b. the termination and the revival of the application of a debt rescheduling scheme, referred to in Article 312;
c. a summary of a final arrangement (composition) with the creditors and its sanction (approval) by the court;
d. the rescission of a final arrangement (composition) with the creditors;
e. the amount of the distributions;
f. a summary of the decision referred to in Articles 354 and 354a;
g. the date on which the Debt Repayment Scheme ended pursuant to the provisions of Article 356, paragraph 2.
- 2. The structure and content of the before mentioned register shall be regulated by Order in Council.
- 3. The clerk of the court must permit public inspection of the register at no cost and provide an extract from the register against payment.
- 4. On behalf of the register referred to in Article 294a, the clerk of the court shall sent the data meant in paragraph 1 under (a) up to and including (g) to the Minister of Justice or to the body designated for this purpose by Order in Council.

Article 294a Central public register for Debt Repayment Schemes
- 1. A central register is kept by the Minister of Justice or, where pursuant to Article 294, paragraph 4, another body has been designated for this purpose, by that body, in which the data mentioned in Article 294, paragraph 1, under (a) up to and including (g), shall be registered.
- 2. Further provisions regarding the structure and content of such central register are regulated by Order in Council.
- 3. Everyone may inspect the central register free of charge and may obtain extracts from it against payment

Article 294b Provision of data to be registered in central register
For each Dept Repayment Scheme of which the application has been ordered, the clerk of the court shall hand on an extract of the petition with the ancillary documents based on Article 285 to the Minister of Justice or, where pursuant to Article 294, paragraph 4, another body has been designated for this purpose, to that body, for registration in the register meant in Article 294a. The Minister of Justice or, respectively, the body meant in the first sentence shall determine which data are to be shown on the extract from the register. Article 294a, paragraph 3, shall apply to that extract.