provided that as a result of such avoidance clear-

(3)

On application by the administrator the insol-

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ing, including settlement of balances, is not

vency court may waive the drawing up of the list;

reversed and the relevant payment orders, orders

the application must state the grounds on which

between payment service providers or interme-

it is based. If a creditors’ committee is appointed,

diaries or orders for the transfer of securities do

the administrator may submit the application

not become ineffective.

only with the consent of the creditors’

Part Four – Management and Realisation

committee.

of the Insolvency Estate

Section 152 – List of Creditors

Chapter One – Securing the Insolvency Estate

(1)

The insolvency administrator shall draw up a list

of all the debtor’s creditors ascertained by him/

her from the debtor’s books and business records,

Section 148 – Taking Charge of the Insolvency Estate

from other information from the debtor, through

(1)

After commencement of the insolvency proceed-

the filing of their claims or in any other way.

ings the insolvency administrator shall immedi-

(2)

The list shall record the creditors entitled to sepa-

ately assume possession and management of all

rate satisfaction and the individual ranking cate-

the assets belonging to the insolvency estate.

gories of the subordinated insolvency creditors

(2)

The administrator may enforce the surrender of

separately. The creditor’s address and the basis

property in the debtor’s custody on the basis of

and the amount of the creditor’s claim shall be

an enforceable execution copy of the order com-

stated in each case. In the case of the creditors

mencing proceedings by way of compulsory en-

entitled to separate satisfaction, the asset sub-

forcement. Section 766 of the Code of Civil Proce-

ject to the right of separate satisfaction and the

dure [Zivilprozessordnung] applies subject to the

amount of the probable shortfall shall also be

proviso that the insolvency court takes the place

indicated; section 151 (2) sentence 2 applies with

of the court of enforcement.

the necessary modifications.

(3)

The list shall further indicate the possibilities

Section 149 – Valuables

which exist for set-off. The amount of the prefer-

(1)

The creditors’ committee may determine where

ential liabilities in the event of a prompt realisa-

and on what conditions funds, securities and ob-

tion of the debtor’s assets shall be estimated.

jects of value are to be deposited or invested. If a

Section 153 – Statement of Assets and Liabilities

creditors’ committee has not been appointed, or

if the creditors’ committee has not yet passed a

(1)

The insolvency administrator shall draw up a

relevant resolution, the insolvency court may

structured overview as of the date of commence-

make a corresponding order.

ment of the insolvency proceedings listing and

(2)

The creditors’ meeting may decide on differing

comparing the assets of the insolvency estate

arrangements.

and the debtor’s liabilities. Section 151 (2) applies

with the necessary modifications to the valua-

Section 150 – Sealing

tion of the assets; section 151 (2) sentence 1 ap-

In order to secure the assets of the insolvency

plies with the necessary modifications to the

estate, the insolvency administrator may have

classification of the liabilities.

seals affixed by a bailiff or other person author-

(2)

After the statement of assets and liabilities has

ised by statute. The record documenting the seal-

been drawn up, on application by the insolvency

ing or unsealing of assets must be deposited by

administrator or a creditor the insolvency court

the insolvency administrator in the court registry

may order the debtor to affirm the completeness

for the parties’ inspection.

of the statement of assets and liabilities by affi-

davit. Sections 98 and 101 (1) sentences 1 and 2 ap-

Section 151 – List of Assets of the Insolvency Estate

ply with the necessary modifications.

(1)

The insolvency administrator shall draw up a list

Section 154 – Deposit in the Court Registry

of the individual assets belonging to the insol-

vency estate. The debtor shall be consulted, if

The list of assets of the insolvency estate, the list

this is possible without prejudicial delay.

of creditors and the statement of assets and lia-

(2)

The value of each asset shall be stated. If the

bilities shall be deposited in the court registry for

value depends on whether the enterprise contin-

the parties’ inspection no later than one week

ues to operate or is closed down, both values

prior to the report meeting.

shall be stated. Valuations that are particularly

difficult to assess may be passed to an expert.

Insolvency and Restructuring in Germany – Yearbook 2018

possible without prejudicial delay. If the credi-

Chapter Three – Assets Subject to Rights to

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tors’ meeting has not granted its consent, on

Separate Satisfaction

application by the debtor or a majority of credi-

Section 165 – Realisation of Immovable Assets

tors as specified in section 75 (1) No. 3 and after

hearing the administrator, the insolvency court

The insolvency administrator may apply to the compe-

may temporarily prohibit performance of the

tent court to conduct the forced sale or seques-

legal act and convene a creditors’ meeting to

tration of an immovable asset of the insolvency

decide on performance of the legal act.

estate even if the asset is subject to a right to

Section 162 – Disposal of Business Operations to

separate satisfaction.

Parties with a Special Interest

Section 166 – Realisation of Movable Assets

(1)

The disposal of the enterprise or of a business op-

(1)

The insolvency administrator may realise a mov-

eration requires the consent of the creditors’

able asset that is subject to a right to separate

meeting if the acquirer or a person who holds at

satisfaction by private sale if he/she has the item

least one fifth of the acquirer’s capital

in his/her possession.

1. belongs to the group of persons with a close

(2)

The insolvency administrator may collect or oth-

relationship to the debtor (section 138);

erwise realise an account receivable which the

2. is a creditor with a right to separate satisfac-

debtor has assigned in order to secure a claim.

tion or a non-subordinated insolvency creditor

(3)

Subsections (1) and (2) do not apply

whose rights to separate satisfaction and claims

1. to assets subject to a security interest in favour

are assessed by the insolvency court as together

of the operator of or a participant in a system

reaching one fifth of the total resulting from the

pursuant to section 1 (16) of the Banking Act

value of all rights to separate satisfaction and the

[Kreditwesengesetz] in order to secure its claims

amounts of the claims of all non-subordinated

under the system;

insolvency creditors.

2. to assets subject to a security interest in favour

(2)

A person shall also be deemed to hold a partici-

of the central bank of a Member State of the

pating interest in the acquirer within the mean-

European Union or a contracting state of the

ing of subsection (1) insofar as a company con-

Agreement on the European Economic Area or in

trolled by the person or a third party holds a

favour of the European Central Bank or

participating interest in the acquirer for the ac-

3. to a financial collateral arrangement within the

count of the person or of the controlled

meaning of section 1 (17) of the Banking Act

company.

[Kreditwesengesetz].

Section 163 – Disposal of Business Operations Below

Section 167 – Provision of Information to the Creditor

Value

(1)

If the insolvency administrator is entitled to real-

(1)

On application by the debtor or a majority of

ise a movable asset pursuant to section 166 (1),

creditors as specified in section 75 (1) No. 3 and

he/she must provide information on the condi-

after hearing the administrator, the insolvency

tion of the asset to the creditor entitled to sepa-

court may order that the planned disposal of the

rate satisfaction on the latter’s request. In place

enterprise or of a business operation requires the

of providing information, he/she may permit the

consent of the creditors’ meeting if the applicant

creditor to inspect the asset.

demonstrates to the satisfaction of the court

(2)

If the insolvency administrator is entitled to col-

that a disposal to another acquirer would be

lect an account receivable pursuant to section

more favourable for the insolvency estate.

166 (2), he/she must provide information about it

(2)

If costs are incurred by the applicant as a result of

to the creditor entitled to separate satisfaction

the application, the applicant is entitled to reim-

on the latter’s request. In place of providing infor-

bursement of these costs from the insolvency

mation, he/she may permit the creditor to in-

estate as soon as the court order is issued.

spect the debtor’s books and business records.

Section 164 – Validity of the Acts of the Insolvency

Section 168 – Notification of Intention to Sell

Administrator

(1)

Before the insolvency administrator sells an asset to

The validity of the acts of the insolvency adminis-

a third party which he/she is entitled to realise pur-

trator shall not be affected by any contravention

suant to section 166, he/she must notify the credi-

of sections 160 to 163.

tor entitled to separate satisfaction of the means by

which the asset is to be sold. He/she must give the

creditor the opportunity to indicate, within one

(2)

When the claim is filed the basis and the amount

to be undertaken in writing. Sentences 1 and 2

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of the claim must be stated, together with the

apply with the necessary modifications to subse-

facts which, in the view of the creditor, indicate

quent amendments to filed claims.

that the claim is based on the commission of an

(2)

If the court has requested subordinated creditors

intentional tort, an intentional violation, in breach

to file their claims pursuant to section 174 (3) and

of duty, of a statutory maintenance obligation or a

if the period allowed for filing expires less than

criminal offence by the debtor under sections 370,

one week prior to the verification meeting, at the

373 or 374 of the Fiscal Code [Abgabenordnung].

expense of the insolvency estate the court shall

(3)

The claims of subordinated creditors have to be

either fix a special verification meeting or order

filed only if the insolvency court specifically re-

the verification process to be undertaken in

quires the filing of these claims. When such

writing.

claims are filed, reference must be made to their

(3)

Notice of the special verification meeting shall be

subordination and the ranking to which the cred-

published. The insolvency creditors who have

itor is entitled.

filed claims, the insolvency administrator and the

(4)

Claims may be submitted by the transmission of

debtor shall be specifically invited to the meet-

an electronic document if the insolvency admin-

ing. Section 74 (2) sentence 2 applies with the

istrator has expressly agreed to the transmission

necessary modifications.

of electronic documents. In this case the docu-

Section 178 – Requirements for and Effects of Accept-

mentation evidencing the claim shall subse-

quently be sent in without delay.

ance of Claims

(1)

A claim is deemed to be accepted insofar as no

Section 175 – Schedule

objection is raised against it at the verification

(1)

The insolvency administrator shall register each

meeting or during the written verification pro-

filed claim in a schedule together with the infor-

cess (section 177) either by the insolvency admin-

mation specified in section 174 subsections (2)

istrator or by one of the insolvency creditors, or

and (3). The schedule containing the filed claims

any objection raised is overcome. An objection by

together with the documentation attached shall

the debtor shall not preclude acceptance of the

be deposited in the court registry of the insol-

claim.

vency court for the parties’ inspection within the

(2)

For each filed claim the insolvency court shall

first third of the period of time between the ex-

register in the schedule the extent to which the

piry of the time limit for filing claims and the

claim has been accepted in terms of amount and

verification meeting.

ranking or who objected to acceptance of the

(2)

If a creditor has filed a claim on the basis of an

claim. An objection by the debtor shall also be

intentional violation, in breach of duty, of a statu-

registered. The clerk of the court registry shall

tory maintenance obligation or a criminal of-

note the acceptance of the claim on bills of ex-

fence by the debtor under sections 370, 373 or 374

change and other debt instruments.

of the Fiscal Code [Abgabenordnung], the insol-

(3)

In terms of the amount and the ranking of ac-

vency court shall advise the debtor of the legal

cepted claims, the entry in the schedule has the

consequences of section 302 and the possibility

effect of a final judgment against the insolvency

of objection.

administrator and all insolvency creditors.

Section 176 – Format of the Verification Meeting

Section 179 – Disputed Claims

The amount and ranking of the filed claims shall

(1)

If a claim is disputed by the insolvency adminis-

be verified at the verification meeting. Claims

trator or one of the insolvency creditors, it is left

diswputed by the insolvency administrator, the

to the creditor to pursue acceptance of the claim

debtor or an insolvency creditor shall be dis-

against the party disputing the claim.

cussed individually.

(2)

If an enforceable debt instrument or a final judg-

ment exists for such a claim, it is the responsibil-

Section 177 – Late Claim Submission

ity of the party disputing the claim to pursue the

(1)

Claims filed after the expiry of the period allowed

objection.

for filing shall also be verified at the verification

(3)

The insolvency court shall issue the creditor

meeting. However, if the insolvency administra-

whose claim has been disputed with a certified

tor or an insolvency creditor objects to this verifi-

extract from the schedule. In the case specified in

cation or if a claim is only filed after the verifica-

subsection (2), the party disputing the claim shall

tion meeting, at the defaulting party’s expense

also receive a certified extract. The creditors

the insolvency court shall either fix a special veri-

whose claims have been accepted will not be

fication meeting or order the verification process