Recovering debts from an insolvent company is a task, which is difficult to accomplish. Moreover, in the course of recovering such debts a creditor risks to lose his money untimely. Member of the board of law office INLAT PLUS Aleksandr Lenkovksy tells of standard risks that creditors might face in the course of recovering debts from an insolvent company.
A creditor shall watch its debtors. If a company is declared insolvent then a relevant publication shall appear in the “Latvijas Vestnesis” newspaper. According to law, creditors shall submit its’ claims within a period of 1 to 3 months. Besides, in recent years courts usually estimate a term of 1 month.
What might happen in case your company submits its claim after this term? Administrator will put your company on a second priority list of creditors, who in turn have no rights to vote at the meeting of creditors. In fact such creditor won’t be even second in line, but fifth. The first in line is, as known, Insolvency administration, employees follow as second, government third, then so called first priority creditors who did manage to submit claims in a timely manner and only after that those who didn’t. It is unlikely that a debtor will still have any valuables when it comes your turn.
Furthermore, if debt constitutes a significant sum and you will manage to make it to the list of first priority creditors, you will be entitled to influence actions of the administrator.
Make a practice of checking your debtors once a month through data bases of the Insolvency Register (may be found at the website of the Enterprise Register – http://www.ur.gov.lv/rus/neplatezosposobnosti.html). At least you could check on the most suspicious and biggest of your debtors.
When a creditor sees that a company fails to settle its debts, it may submit insolvency petition to the court in respect of such company. It is vital to prepare a correct notice where you inform the debtor about your intentions. The most important is that such notice shall contain a clear warning that if no reaction will follow from the debtor within 3 weeks, insolvency petition will be submitted to the court. Besides, such notice shall indicate the sum of debt and other facts of the case.
The notice shall be sent to the debtor by means of insured mail with receipt notice. If a letter is insured, its contents are listed: you shall indicate that this letter contains notice of intention to submit insolvency petition.
If a creditor fails to comply with such requirements then further events may develop in two ways. The first one is that court will refuse to accept your petition on the grounds of failure to comply with all necessary procedure requirements, regardless of the fact that you have already paid state fee in amount of LVL 100,00. Therefore, you will have to prepare notice one more time and wait three weeks prior to submitting petition to the court. By this time the debtor can manage to take away all assets from its company leaving your actions with no meaning.
The second option is even worse. The court pays no attention to non-compliance to procedural requirements and sets matters moving. However the judge may find creditor’s petition unfounded at the court sitting due to failure to observe certain formalities. In this case the creditor may lose the money spent on state fee, as well as sum in amount of approximately LVL 800,00 – salary of the administrator, who shall be appointed upon initiation of insolvency matter in court.
Upon receiving of a notice the debtor shall either pay the debt or raise his motivated objections within 3 weeks. If nothing happens creditor may refer the case to the court. However, there’s no clear understanding as to what shall be considered as motivated objections. The creditor shall consider debtor’s objections on his own, keeping in mind that the judge may have adverse opinion. And if the judge will consider debtor’s objections well-founded, then a creditor may lose up to LVL 900,00 ending with no result in the case against debtor.
It occurs from past experience that most of the debtors always raise objections against creditor’s notice. Usually debtors come up with stories of improper quality of delivered goods or rendered services or something similar.
Creditors, whose debtors owe them sums not exceeding 2000,- LVL, usually suffer the most. Debtors are convinced that initiating litigation in such case may be more trouble for a creditor than it is worth. With this in mind, debtors are not in a hurry to settle its’ debts. On the other side, a creditor considering the outcome of such litigation may take a decision to frighten the debtor with insolvency procedure. But the creditor shall keep in mind that debtor’s unwillingness to settle the debt is different from his ability to pay and therefore creditor risks to have well founded objections to its notice, e.g. debtor’s assets exceed the sum of its overall indebtedness.
Nevertheless there are businessmen that want to discipline its’ debtors whatever it takes, though risking to lose LVL 900,00. They get lucky sometimes: once a successful company has been declared insolvent due to such insignificant sum of debt. When reviewing documents administrator discovered that some time ago this company has been in the state of actual insolvency. It was enough to declare it insolvent regardless of the fact that up to the moment of declaration the company had already successfully overcame the debt pit.
Submission of works to the customer shall be evidenced in a form of document, especially in the event of rendering certain hard to prove services, e.g. preparation of marketing plan for development.
Creditors may face another unpleasant situation upon administrator’s acceptance or non-acceptance of the creditor’s claim. Administrator may decline the claim due to reasons of finding it groundless, e.g. administrator may decide there’s a dispute between the parties in regard to the quality of the services, which in turn shall be settled in the court.
In this case a creditor is forced to dispute the actions of the administrator. If court adheres to administrator’s opinion, then inclusion of creditor’s claim shall be subject to litigation in accordance with standard procedure. In return, this will result in additional expenses such as state fees for taking the company to court, and again a creditor shall consider the use of long years’ litigation with already insolvent company.
Translated by J.Beljaevs