Bankruptcy
Act
TITLE III DEBT REPAYMENT SCHEME FOR NATURAL
PERSONS
Chapter 7 Winding-up of the Liquidation Estate
Article 347 State of insolvency; realisation of assets of the liquidation
estate
- 1. As soon as the judgment ordering the application
of the Debt Repayment Scheme has been rendered by the court, the liquidation
estate of the debtor shall enter, by operation of law, into a state of
insolvency, and the administrator shall proceed to the winding-up and
realization of its assets as far as the magistrate ('rechter-commissaris'')
has not provided otherwise in this respect, without the need to have the
consent or cooperation of the debtor for doing so.
- 2. The assets shall be sold by private sale
unless the magistrate ('rechter-commissaris'') orders a public
sale.
- 3. Article 176, paragraph 2, shall apply
accordingly.
Article 348 Meeting with the creditors regarding the winding-up and verification
of later submitted claims
Upon the request of the debtor, administrator or creditor or of his own
motion (ex officio), the magistrate (''rechter-commissaris''')
may convene a meeting with the creditors, to be set by him at a specific
date, time and place, in order to consult them, where necessary, on the
way in which the liquidation estate shall be wound-up and on other matters
regarding the Debt Repayment Scheme, and, where necessary, to verify and
admit claims which have been submitted (presented) when the period referred
to in Article 289, paragraph 2 already had passed, and which were not
yet verified and admitted in accordance with Article 127. In respect of
these claims the administrator shall act in accordance with the provisions
of Articles 111 up to and including 114. No less than ten days prior to
this meeting the administrator will sent a letter to the creditors in
which he calls them to the meeting, and in which the subjects that will
be considered (discussed) at that meeting are set out, reminding them
also of Article 114.
Article 349 Distributions made from the liquidation estate
- 1. Whenever there is sufficient cash available
to make a distribution, the magistrate ('rechter-commissaris'')
shall order that such distribution is to be made to the admitted creditors.
Yet, no distribution shall be made if an asset still has to be sold that
is encumbered with a pledge or mortgage or to which a priority ranking
(right of preference) is attached as meant in Article 292 of Book 3 of
the Civil Code or to which a privilege is attached. If an asset as referred
to in the preceding sentence shall enter into the liquidation estate after
a distribution is made, this will not affect the validity of such distribution.
- 2. The distributions shall be made pro rata
to the value of each creditor's claim, provided that, as long as claims
subject to a priority ranking (right of preference) have not been satisfied
in full, the percentage paid thereon shall be twice that payable on non-preferential
claims.
- 3. For the purpose of paragraph 2, claims
of creditors with a priority ranking (right of preference), whether or
not this is contested, which have not already been satisfied in accordance
with Article 57 or 299b, paragraph 3, shall be fixed at the amount for
which they may be credited on verification on the proceeds of the property
to which the priority ranking (right of preference) relates. If this is
less than the entire amount of their claims, they shall be treated as
non-preferential creditors in respect of any shortfall.
- 4. The administrator shall draw up a distribution
list from time to time. The list shall include a statement of receipts
and expenditures, the names of the creditors, the admitted amount of each
creditor's claim and the distributions to be received thereon.
- 5. Articles 181, 182 - in which Article 60,
paragraph 3, second sentence, should be read as Article 299b, paragraph
3, second sentence -, 183 up to and inclusive 189, 191 and 192 shall apply
accordingly.
Chapter 8 Duration and ending of the Application of a Debt Repayment Scheme
Article 349a Duration of the application of the Debt Repayment Scheme
- 1. The application of the Debt Repayment
Scheme will last for a period of three years, to be calculated as of the
day on which the judgment ordering the application of the Debt Repayment
Scheme was rendered, including that day. In derogation from the preceding
sentence, the court may set the before meant period to at the most five
years if for the entire period also a nominal amount is fixed as meant
in Article 295, paragraph 3.
- 2. Upon the request of the administrator,
the debtor or one or more creditors or of his own motion (ex officio),
the magistrate ('rechter-commissaris'') may, by written order,
change the period referred to in paragraph 1. The period shall at the
most be five years. The administrator shall, without delay, give notice
of the changed period to the creditors. The magistrate ('rechter-commissaris'')
must grant the debtor the opportunity to be heard before a decision on
the extension of the period is taken.
- 3. On the same conditions the District Court
may, within the framework of Article 350 or 352, change the period meant
in the previous paragraphs, upon a proposal of the magistrate ('rechter-commissaris'')
or upon the request of the administrator, debtor or one or more creditors.
The debtor as well as the creditors who have requested for a change of
the involved period may lodge an appeal against such judgment during eight
days after the day of that judicial decision. Article 351, paragraph 2
up to and including 5, shall apply.
Article 350 Termination of the application of the Debt Repayment Scheme
by the court
- 1. Upon a proposal of the magistrate ('rechter-commissaris'')
or upon the request of the administrator, the debtor or one or more creditors,
the District Court may terminate the application of a Debt Repayment Scheme.
It may also do so of its own motion (ex officio).
- 2. Prior to its decision the District Court
shall call the debtor to court in order to hear him. It may also call
creditors for such purpose.
- 3. A termination as referred to in paragraph
1 may be ordered if:
a. the claims to which the Debt Repayment Scheme
applies have been satisfied;
b. the debtor is in a position to resume (restart)
his payments;
c. the debtor does not properly perform one
or more obligations arising from the Debt Repayment Scheme;
d. the debtor causes or tolerates excessive
debts to be incurred;
e. the debtor tries to harm (prejudice) his
creditors;
f. facts and circumstances have become known
that existed already on the day on which the petition for an order for
the application of the Debt Repayment Scheme was lodged, and that would
produce a ground to reject that petition in accordance with Article 288,
paragraph 1 and 2;
g. the debtor makes plausible that he is not
able to comply with the obligations arsing from the Debt Repayment Scheme.
- 4. The decision shall be given in the form
of a judgment. In the instances meant in paragraph 3, under (a) and (b),
and when no assets at all are present from which a distribution can be
made, no verification of claims and no drawing up of a distribution list
will take place, and the Debt Repayment Scheme shall end when the judgment
to terminate it has become final and binding,
- 5. If termination is ordered on account of
the provisions in paragraph 3, under (c) up to and including (g), and
assets are available from which claims may be paid in full or in part,
the debtor shall by operation of law enter into a state of bankruptcy
as soon as the judgment to terminate the Debt Repayment Scheme has become
final and binding. The District Court shall immediately appoint a magistrate
in bankruptcy ('rechter-commissaris'') and a bankruptcy liquidator
('curator').
- 6. The administrator, or where paragraph
5 is applicable, the bankruptcy liquidator shall ensure publication of
the ending of the Debt Repayment Scheme in the Government Gazette.
Article 351 Appeal and appeal in cassation
- 1. In the event that the District Court has
terminated the application of the Debt Repayment Scheme, the debtor has
the right to make an appeal against this decision during eight days after
it was rendered; in the event that the court has refused to terminate
the application of the Debt Repayment Scheme, the person who has lodged
a petition for such termination has the right to make an appeal against
that decision during eight days after it was rendered.
- 2. An appeal meant in the preceding paragraph
shall be made by submitting a petition to the office of the clerk of the
Court of Appeal which must hear the matter. The clerk of the Court of
Appeal shall, without delay, inform the clerk of the District Court of
the lodged appeal.
- 3. The presiding judge of the Court of Appeal
shall at once set the date and time of the hearing, which must take place
within twenty days after the day on which the petition for appeal was
lodged.
- 4. The Court of Appeal shall give its decision
no later than on the eight day after the hearing where the petition for
appeal has been dealt with. The clerk of the Court of Appeal shall, without
delay, inform the clerk of the District Court of the decision of the Court
of Appeal.
- 5. The party who has been put in the wrong
by the Court of Appeal has the right to make an appeal in cassation against
that judgment during eight days after it was rendered. Such an appeal
in cassation must be made by submitting a petition to the office of the
clerk of the Supreme Court. The clerk of the Supreme Court shall, without
delay, inform the clerk of the District Court of the lodged appeal in
cassation and of the decree (decision) of the Supreme Court.
Article 351a Account made by the administrator on how the debtor has complied
with his obligations
No later than three months before the period referred to in Article 349a
expires, the administrator shall give an account to the magistrate ('rechter-commissaris'')
of the way in which the debtor has complied with his obligations during
the application of the Debt Repayment Scheme.
Article 352 Setting a hearing on the termination of the Debt Repayment
Scheme
- 1. If the application of the Debt Repayment
Scheme has not already ended, the District Court shall, upon a proposal
of the magistrate ('rechter-commissaris'') or upon the request
of the administrator or debtor or of its own motion (ex officio), set
the day, hour and place for the hearing where the termination of the application
of the Debt Repayment Scheme shall be dealt with; the court order in which
the District Court sets the before meant day, hour and place must be rendered
no later than one month before the period referred to in Article 349a
expires.
- 2. The hearing shall be held not earlier
than fourteen days and not later than twenty-one days after the court
order of the District Court.
- 3. Without delay the administrator shall
ensure publication of the date, hour and place of the court hearing in
the Government Gazette.
Article 353 The hearing
- 1. The administrator and debtor may be called
in writing to the court for the hearing which is set pursuant to Article
352. The debtor and administrator are called to that hearing when there
is doubt whether the debtor has failed to comply with one or more his
obligations arisen from the Debt Repayment Scheme and whether this is
attributable to him.
- 2. The District Court may provide each appeared
creditor the opportunity to speak at the hearing, either in person or
through a representative authorized by written procuration (power of attorney)
or through an advocate (solicitor admitted to the Bar).
Article 354 Decision of the District Court
- 1. On the day of the hearing or otherwise
no later than on the eight thereafter, the District Court shall give its
decision in the form of a judgment on the question whether the debtor
has failed to comply with one or more his obligations arisen from the
Debt Repayment Scheme and, if there is such failure, whether it is attributable
to him.
- 2. In the event of an attributable failure,
the District Court may determine that, in view of its particular nature
or insignificance, such failure shall not be taken into account.
Article 354a District COurts sets a day for the hearing on termination
of the Debt Repayment Scheme
- 1. When at least one year has passed since
the court order for the application of the Debt Repayment Scheme was rendered
and thus far no day for a verification meeting has been set, the District
Court may, upon a proposal of the magistrate ('rechter-commissaris'')
or upon the request of the administrator or debtor, set a day for the
hearing where the termination of the Dept Repayment Scheme shall be dealt
with. The District Court shall only set such hearing when the proposal
or request is attended with a reasoned statement of the administrator
about the question whether it is reasonably not to be expected that the
debtor may in such way comply with is obligations that a continuation
of the Debt Repayment Scheme is justified. The magistrate ('rechter-commissaris'')
may instruct the administrator to put this statement in writing and to
send it to the District Court and the parties concerned.
- 2. The District Court shall terminate the
Debt Repayment Scheme only if it is reasonably not to be expected that
the debtor is able to comply with his obligations in such a way that a
continuation of the Debt Repayment Scheme is justified, and no circumstances
as meant in Article 350, paragraph 2, under (c) up to and including (g)
have appeared to be present.
- 3. The District Court may one or more times
stay its decision in order to conduct further investigations.
- 4. Without delay the administrator shall
ensure publication of the date, hour and place in the Government Gazette.
Article 355 Appeal to be made by the creditors and debtor
- 1. The creditors and debtor may lodge an
appeal against the judgment meant in Article 354 and 354a within eight
days after the date of that judgment.
- 2. Article 351, paragraph 2 up to and including
5, is applicable.
Article 356 Drawing up final distribution list; termination of the Debt
Repayment Scheme
- 1. As soon as a decision referred to in Article
354 has become final and binding the administrator shall, without delay,
proceed to the drawing up of a final distribution list. No final distribution
list shall be drawn up if the District Court has terminated the Debt Repayment
Scheme on the basis of Article 354a.
- 2. The application of a Debt Repayment Scheme
is terminated by operation of law as soon as the final distribution list
has become binding or, if the District Court has terminated the application
of the Debt Repayment Scheme on the basis of Article 354a, as soon as
the judicial decision for termination has become final and binding . The
administrator shall ensure publication thereof in the Government Gazette.
- 3. Upon expiry of one month after termination
the administrator shall render account of his administration to the magistrate
('rechter-commissaris'').
- 4. Article 194 is applicable.
Article 357 [repealed on 01-01-2008]
Article 358 Enforceability of claims after the ending of the Debt Repayment
Scheme
- 1. Where the application of a Debt Repayment
Scheme has been terminated on the basis of Article 356, paragraph 2, a
claim to which the Debt Repayment Scheme applies shall, insofar as this
has not been satisfied, no longer be enforceable, irrespective of whether
or not the creditor submitted (presented) his claim in the Debt Repayment
Scheme and whether or not the claim was admitted.
- 2. Paragraph 1 shall not apply if, in the
judgment referred to in Article 354, the court has established that there
was a failure attributable to the debtor and the court did not proceed
to the application of Article 354, paragraph 2.
- 3. Paragraph 1 applies as well to estate
debts*) meant in Article 15d, paragraph 1, under (b) insofar these debts
cannot be recovered from the liquidation estate of the Debt Repayment
Scheme.
- 4. Without prejudice to Article 288, paragraph
2, under (c), paragraph 1 shall not be applicable in the event of the
termination of the Debt Repayment Scheme with regard to claims resulting
from a final and binding penal conviction:
a. to pay a fine as meant in Article 9, first
paragraph, under (4), of the Penal Code;
b. to pay a sum of money to deprive the debtor
of a benefit which he acquired unlawfully as referred to in Article 36e
of the Penal Code;
c. to pay a sum of money on behalf of a victim
as meant in Article 36f of the Penal Code;
d. to pay compensatory damages to an injured
(harmed) party as referred to in Article 51a of the Penal Code.
For the purpose of the present paragraph a claim shall include a claim
resulting from a final and binding judgment in which the debtor is ordered
to pay damages that has been rendered by the civil court after the criminal
court, that has ruled on the criminal offence, had established that only
the civil court has jurisdiction over the claim for the payment of damages
of a part thereof.
- 5. Paragraph 1 is not applicable with regard
to a claim for which a mortgage serves as security that is taken out on
registered property where the debtor resides if Article 303, paragraph
3, applies to the interest accrued on this claim.
- 6. Paragraph 1 is not applicable when the
debtor has deceased during the application of the Debt Repayment Scheme.
*) 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.
Chapter 9 Special Provisions
Article 358a New facts have appeared after termination of the Debt Repayment
Scheme
- 1. If, after termination of the application
of the Debt Repayment Scheme as a result of which the legal effect referred
to in Article 358, paragraph 1 became operative, there appear to have
been facts or circumstances which already had occurred before such time
and which would have given grounds for termination of the application
of the Debt Repayment Scheme on the basis of Article 350, paragraph3,
under (e), the District Court may, upon the request of any interested
party, determine that Article 358, paragraph 1, shall no longer apply.
- 2. Prior to its decision the District Court
shall call the debtor to court in order to be heard.
- 3. An Appeal may be lodged against the judgment
meant in the preceding paragraphs within eight days after it was rendered.
Such an appeal shall be made by submitting a petition to the clerk's office
of the Court of Appeal which must be seized of the matter.
- 4. Within eight days after the judgment of
the Court of Appeal, an appeal in cassation may be lodged. Such an appeal
in cassation must be made by submitting a petition to the clerk's office
of the Supreme Court.
- 5. As soon as the decision referred to in
the paragraph 1 has become final and binding, the clerk of the judicial
body that gave this decision shall, without delay, publish it in the Government
Gazette.
Article 359 Application of Articles when the debtor has been declared
bankrupt
- 1. If the debtor is declared bankrupt during
the application of the Debt Repayment Scheme or if the debtor has become
bankrupt in consequence of Article 350, paragraph 5, then the following
rules shall apply:
a. acts performed by the administrator during
the application of the Debt Repayment Scheme shall remain valid and binding;
b. estate debts*) which arose during the application
of the Debt Repayment Scheme shall be regarded as debts of the liquidation
estate in bankruptcy;
c. new debts arisen during the application
of the Debt Repayment Scheme, not being estate debts*), shall be regarded
in the bankruptcy as admittable debts;
d. claims submitted in the Debt Repayment Scheme
shall be regarded as to have been submitted in the bankruptcy;
e. interest claims as meant in Article 303
must be submitted after all.
- 2. The liquidator ('curator') shall
exercise the powers conferred on the administrator in Article 297, paragraph
3.
- 3. The start of the time periods mentioned
in Articles 43 and 45 shall be calculated with effect from the date of
the decision to apply the Debt Repayment Scheme.
*) 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 359a Application of other Articles
Articles 203 up to and including 205 shall apply accordingly
Chapter 10 Final Provisions
Article 360 No appeal or other legal remedy available unless provided
otherwise
No appeal or other legal remedy is available against decisions of the
court given pursuant to the provisions of the present Title (Title III),
except as otherwise provided and save for the possibility of an appeal
in cassation in the interest of the law.
Article 361 Lodged petition must be signed by an advocate or administrator
- 1. Petitions made on the basis of Articles
292, paragraph 1 and 3, 315, paragraph 1, 348, 349a, paragraph 2, 350,
paragraph 1, 351, paragraph 1, 355, paragraph 1 and 358a, paragraph 1
must be signed by an advocate (solicitor admitted to the Bar), except
when a request is made by the administrator or in the case of a request
by the debtor pursuant to Article 350, paragraph 1.
- 2. Petitions made on the basis of Article
33 of the European Regulation meant in Article 5, paragraph 3, must be
signed by an advocate (solicitor admitted to the Bar).
- 3. In order to lodge an appeal in cassation
the assistance of an advocate (solicitor admitted to the Bar) accredited
to the Supreme Court shall be required.
Article 362 No applicability of the General Computation of Time Periods
Act
- 1. The General Computation of Time Periods
Act (Algemene Termijnenwet) is not applicable to the time limits laid
down in Articles 39, 40, 238, 239 and 305.
- 2. Title 3 of Book 1 of the Code of Civil
Procedure shall not apply to petitions (applications) made on the basis
of the present Act.
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