Bankruptcy
Act
TITLE III DEBT REPAYMENT SCHEME FOR NATURAL
PERSONS
Chapter 3 Administration of the Liquidation Estate
Article 314 Tasks of the magistrate
- 1. The magistrate ('rechter-commissaris')
shall exercise supervision over the way in which the administrator fulfils
his duties pursuant to the present Title (Tile III).
- 2. Articles 55 and 66 shall apply accordingly.
Article 315 Appeal against orders and decisions of the magistrate
- 1. An appeal may be lodged with the District
Court against any order of the magistrate (''rechter-commissaris'');
such an appeal must be lodged within five days from the date on which
the order is given. The District Court will decide after having heard
the interested parties or after they have been duly summoned.
- 2. Nevertheless, no appeal is available against
orders or decisions of the magistrate made in accordance with Articles
21, under (4º), 34, 58, paragraph 1, 59a, paragraph 3, 94, paragraph
2, 102, paragraph 2, 125, 127, paragraph 4, 176, paragraph 2 and the court
orders referred to in Articles 287, paragraph 5, 289, paragraph 2, 290,
paragraph 2, 295, paragraph 3, 296, paragraph 3, 299b, paragraph 3 and
5, 310, paragraph 1, 311, paragraph 1, 316, paragraph 2, 318, paragraph
2, 320, paragraph 2 and 4, 324, paragraph 3, 328a, paragraph 2, 332, paragraph
4 and 347, paragraph 2.
Article 316 Tasks of the administrator
- 1. The administrator is charged with:
a. supervision over the way in which the debtor complies with the obligations
imposed on him under the application of the Debt Repayment Scheme;
b. the administration and winding-up (liquidation) of the liquidation
estate.
- 2. The administrator needs the magistrate’s
authorization to start legal proceedings, except where it concerns verification
disputes and matters as referred to in Articles 37, 40, 58, paragraph
2, 59a, paragraph 6, 305, 326, paragraph 1 and 349 paragraph 1. Article
72 shall apply accordingly.
Article 317 Objections against (intended) acts of the administrator
- 1. Each of the creditors as well as the debtor
may lodge a petition with the magistrate (''rechter-commissaris'')
in order to object against any act of the administrator or to achieve
that the magistrate (''rechter-commissaris'') shall order the
administrator to perform a certain act or to refrain from performing an
intended act.
- 2. The magistrate (''rechter-commissaris'')
gives his decision within three days after he has heard the administrator.
Article 318 Reports to be deposited by the administrator
- 1. Within two months after the judgment ordering
the application of the Dept Repayment Scheme, and no later than ten days
prior to the date on which the verification meeting is to be held, the
administrator shall report on the condition (state) of the liquidation
estate and, subsequently, after every six months, on the continuation
of the application of the Debt Repayment Scheme. The administrator shall
deposit his report at the clerk's office of the District court for inspection
at no charge by creditors. No charge will de made for depositing such
reports.
- 2. The six-month period referred to in paragraph
1 may be changed by the magistrate ('rechter-commissaris'), either
of his own motion (ex offico) or upon the request of the administrator/
Article 319 Dismissal of the administrator
- 1. Upon a proposal of the magistrate ('rechter-commissaris')
or upon a reasoned request of the administrator, one or more creditors
or the debtor, the District Court may dismiss (remove) the administrator
after he has been heard by the court or properly summoned to be heard,
and replace him by someone else.
- 2. The dismissed administrator must render
account for his administration to the succeeding administrator who has
been appointed to replace him
Article 320 Remuneration of the administrator
- 1. The District Court shall set the remuneration
of the administrator in the judgment referred to in Article 354, paragraph
1.
- 2. During the application of the Debt Repayment
Scheme, the magistrate ('rechter-commissaris') may, upon the
request of the administrator, grant from time to time an advance payment
of that remuneration for a period to be set by the court.
- 3. If the application of the Debt Repayment
Scheme has ended on the basis of Article 350 and 354a, the District Court
shall also determine the administrator’s remuneration.
- 4. If the application of the Debt Repayment
Scheme has ended on account of the provision in Article 312, paragraph
2, the District Court shall determine the administrator’s remuneration
as soon as the decision on the declaration of bankruptcy has become final
and binding.
- 5. In the event of a final arrangement (composition)
with the creditors, the administrator’s remuneration shall be determined
in the judgment sanctioning (approving) that final arrangement (composition).
- 6. The remuneration of the administrator
shall be determined according to rules to be set by Order in Council.
- 7. The remuneration of the administrator
shall be an estate debt*) and will be paid with priority over and before
any other debts and over and before a payment as referred to in Article
295, paragraph 5. The provision in the preceding sentence shall also apply
to disbursements and the publication required pursuant to the present
Title (Title III)
- 8. The cost of publications which have to
be made pursuant to the present Title (Title III) and which cannot be
paid from the debtor’s liquidation estate, and the fee of the experts
shall be borne by the State. The clerk of the District Court with which
the debtor has lodged his petition for a court order for the application
of a Debt Repayment Scheme shall ensure payment of the amount, to be specified
by the court who determines the final remuneration, that shall be borne
by the State.
*) Estate debts are debts which are
made by or with the consent of the administrator for account of the
liquidation estate; the involved creditor has a preferential claim (estate
claim) that must be satisfied first from the assets of the liquidation
estate.
Article 321 Application of other Articles
Articles 85 and 86 shall apply accordingly.
Chapter 4 Provisions after an Order for Application of a Debt Repayment
Scheme and the Responsibilities of the Administrator
Article 322 Publication to be held verification meeting and availability
of the draft for a final arrangement
The administrator shall notify all known creditors without delay by letter
of the dates, hour and place referred to in Article 289; if appropriate,
the notification shall include a statement that a draft for a final arrangement
(composition) with the creditors is available for inspection at the office
of the clerk of the District Court during a period of fourteen days prior
to the verification meeting.
Article 323 Safekeeping of the liquidation estate and documents
Immediately upon his appointment the administrator shall ensure the safekeeping
of the debtor’s liquidation estate by all necessary and appropriate
means. Unless the magistrate ('rechter-commissaris') has provided
otherwise, the administrator shall take possession of the records, documents
and other data base carriers belonging to the debtor’s liquidation
estate as well as monies, valuables, securities and other instruments
of value belonging to that estate against the issuance of a receipt, except
insofar the debtor is still entitled to exercise the right of administration
thereof pursuant to a decision as referred to Article 296, paragraph 3.
Article 324 Preparation of an inventory list
- 1. Article 94, paragraph 1 and 2, shall apply
accordingly.
- 2. A list of the property referred to in
Article 295, paragraph 4, shall be appended to the inventory.
- 3. The magistrate ('rechter-commissaris')
may determine that the administrator shall prepare a statement as meant
in Article 96 in replacement of the statement referred to in Article 285,
paragraph 5, under (a).
Article 325 Inventory list deposited at the court
A copy of the inventory list regarding the debtor’s liquidation
estate and, if Article 324, paragraph 3 has been applied, the statement
referred to in that paragraph of that Article shall be deposited for public
inspection at no charge at the office of the clerk of the District Court
which ordered the application of the Debt Repayment Scheme. These statements
may be deposited at no charge.
Article 326 [repealed on 01-01-2008]
Article 327 Application of other Articles
Articles 99 and 102 up to and inclusive 105, and 107 shall apply accordingly.
Chapter 5 Verification of Claims
Article 328 Application of Articles on the verification meeting; accrued
interest on secured claims
- 1. Articles 110 up to and inclusive 116,
119 up to and inclusive 127 - in which latter Article instead of Article
108, under (1°) one should read Article 289, paragraph 3 - and 129
up to and inclusive 137, shall apply accordingly to the verification of
claims.
- 2. Interest accrued after the judgment ordering
the application of the Debt Repayment Scheme on claims secured by a pledge
or mortgage shall be verified pro memoria. Insofar as the interest on
the proceeds thereof is not included as a credit item on verification,
the creditor may not base any rights on such verification.
Article 328a Verification meeting (pro forma meeting)
- 1. The magistrate ('rechter-commissaris')
may request the administrator to report to him within eight days after
the date of such request if the administrator wants to put the verification
of claims to the verification meeting. If the administrator indicates
that he wishes to do so, the magistrate ('rechter-commissaris')
shall set the day, hour and place on which and where the verification
meeting will be held, and the administrator shall, without delay, give
notice thereof to all known creditors and to the debtor by written summons,
unless the magistrate ('rechter-commissaris') has provided otherwise.
- 2. If the administrator reports that he does
not want a verification meeting to be held, the magistrate ('rechter-commissaris')
may determine that such verification meeting shall be held only pro forma
on a day and place set by him, and that the claims shall be regarded to
be verified (admitted) as pointed out by the administrator in agreement
with Articles 112, 113 and 114, unless one of the creditors has notified
within eight days after the written summons meant in the second sentence
to the District Court that he wants to make use of his rights meant in
Article 116, second sentence, and 119, paragraph 1. The administrator
shall immediately give notice of this court order to all known creditors
and to the debtor by written summons, unless the magistrate ('rechter-commissaris')
has provided otherwise.
- 3. Where the District Court has received
a notification of one or more creditors as referred to in paragraph 2,
the magistrate ('rechter-commissaris') shall set the day, hour
and place on which and where the verification meeting will be held. The
administrator shall, without delay, give notice thereof to all known creditors
and to the debtor by written convening notice, unless the magistrate ('rechter-commissaris')
has provided otherwise.
- 4. In the event mentioned in paragraph 2,
a copy of the lists referred to in Article 114 are available at the office
of the clerk of the District Court for eight days after the date of the
notification of the pro forma verification meeting or, if a verification
is to be held, until the day of that meeting.
- 5. As of the start of the day of the pro
forma verification meeting the claims are deemed to be verified (admitted)
as established by the administrator pursuant to Article 112.
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