Applications for bankruptcy from creditors
If a customer owes you money, or you are employed and have not received salary or holiday pay from your employer, you might have to declare the debtor bankrupt. Before you can petition for bankruptcy, you have to attempt other means of debt collection.
Creditors or employees can petition for bankruptcy of a debtor. The petitioner must pay a guarantee for the expenses of the bankruptcy proceedings. However, employees are exempt from the duty to pay a guarantee. The potential costs of petitioning for bankruptcy means that it might be prudent to consider if petitioning for bankruptcy of a debtor is appropriate.
Below is a description of the process of petitioning for bankruptcy.
Before petitioning for bankruptcy, creditors will normally attempt to collect debts through reminders and debt collection procedures. A creditor's last resort before petitioning for bankruptcy will often be distrainment. Distrainment is carried out by an enforcement officer with the aim of determining whether the debtor has any assets which can be seized.
- If this process is unsuccessful, creditors must consider whether it is appropriate to petition for bankruptcy. The key issue here is whether the debtor has any assets which can be realised. If a creditor is unsure whether the debtor has any assets, the creditor risks having to pay the cost of the estate administration.
- Enclosed with the petition for bankruptcy, the creditor must enclose the results of the distrainment and copies of fees which have been paid and a certification of incorporation.
- At the same time as a creditor submits a petition for bankruptcy, he must pay a fee to cover the associated expenses. If it becomes apparent that the debtor has sufficient liquid assets to cover the expenses, the amount will be refunded.
- An employee who has not received salary and holiday pay from their employer by the agreed date can opt to petition for their employer to be declared bankrupt in order to recover what they are owed. However, before petitioning for bankruptcy the employer has to send a payment demand and a bankruptcy notice. Employers who petition for bankruptcy are exempt from the obligation to pay the expenses for the estate administration.
- In addition to the bankruptcy petition to the district court, the employee must enclose documentation that a demand for the debt to be repaid has been submitted to the employer, along with the bankruptcy notice, certificate of incorporation and a copy of the employment contract or a payslip.
- If bankruptcy proceedings is instituted, the Wage Guarantee Scheme will cover, among other things, outstanding salaries and holiday pay, and salary for the first 30 days following the initiation of the bankruptcy proceedings.