Opening the insolvency procedure upon the creditors request
In this material we shall present you the aspects concerning the opening of the insolvency procedure, upon the creditor / creditors’ request.
In most cases, the insolvency procedure is initiated upon the creditors’ initiative. The procedure can be initiated by only one creditor, who has one or several receivables that fulfill the conditions provided by law.
The conditions for initiating the introductive request formulated by creditor / creditors:
In order to promote a claim from the creditor / creditors for starting the insolvency procedure, two conditions should be fulfilled:
- The holder of the request should be an entitled creditor, who can claim the opening of the insolvency procedure;
- The debtor against whom it is formulated the request to be in insolvency.
Thus, not any creditor has the possibility to request the initiation of the insolvency procedure, but only the creditors entitled to it.
According to art. 5 point 20 of Law no. 85/2014, by creditor entitled to request the insolvency procedure opening it is understood the creditor who’s receivable against the debtor’s patrimony is secured, liquid and outstanding for more than 60 days.
The creditors, including the budgetary ones, may request the opening of the insolvency procedure only if, after the compensation of the mutual debts, of any kind, the amount due to them is exceeding the amount provided to art. 5 point 72 of Law no. 85/2014, meaning 40.000 lei, and for employees, of six average gross salaries on economy / per employee.
Also, it is necessary for the debtor against whom it is formulated the request to be in the presumed insolvency state.
The creditor wanting to start the insolvency procedure should prove that it has one or several secured, liquid and outstanding receivables, for more than 60 days, and also it should prove that the amount of its receivables are reaching the threshold value provided by law.
If the creditor proves by the attached documents that it has one or several secured, liquid and outstanding receivables, it does not have to prove by any other reference to the debtor’s insolvency, but the debtor has the obligation to challenge the insolvency procedure, proving the sufficiency of its available money funds.
If the debtor makes several modest payments, insignificant, to the plaintiff creditor or towards other creditors, such situation shall be corroborated with other elements that might lead to the conclusion that the debtor is really not insolvent.
The content of the introductive request formulated by creditors
According to art. 70 paragraph 1 of Law no. 85/2014, any creditor entitled to request the opening of the insolvency procedure against a debtor presumed in insolvency may introduce an introductive claim, where it shall specify:
- The amount and the grounds of the receivables;
- Existence of a preference right constituted by debtor or instituted according to law;
- Existence of liens on the debtor’s assets;
- Declaration concerning the possible intention to participate to the debtor’s reorganization, and in such case, it should be specified, at least as a principle, the method how it understands to participate to the reorganization.