Can a creditor file for bankruptcy of a debtor?

The basic tool for recovering your debts from the debtor is a civil lawsuit. Civil proceedings end with the issuance of a payment order, which is then provided with an enforcement clause. With such a payment order, the creditor can go to a bailiff, who will take steps to enforce the debt. However, it sometimes happens that enforcement by a bailiff is ineffective because the bailiff cannot locate any of the debtor's assets.

Does this mean the end of the road to debt recovery?

The next step towards recovering the debt may be: bankruptcy petition.

Bankruptcy application may be filed by the debtor or any of his personal creditors. This means that not every the creditor may file a motion to declare the debtor bankrupt. For example, a mortgage creditor who is not a personal creditor, but a property creditor, and can only conduct enforcement against specific assets is excluded from the group of eligible entities. Furthermore, if a bankruptcy petition is filed by a creditor, they should substantiate their claim in the filed petition.

A bankruptcy petition is a procedural document that initiates the relevant proceedings, therefore it must meet the requirements set out in the Code of Civil Procedure, i.e. indicate:

1. designation of the court to which it is addressed, name and surname or name of the participants (e.g. debtor, creditor-applicant), their legal representatives and proxies;
2. designation of the type of document in this case will be the wording: application for declaration of bankruptcy;
3. basis of the proposal;
4. where it is necessary to decide on the application or statement, an indication of the facts on which the party bases its application or statement and an indication of the evidence to prove each of those facts;
5. signature of the party or its legal representative or attorney;
6. listing of attachments, e.g. invoices, contracts or bills, which confirm the existence of the receivable.

In case of submission bankruptcy petition consumer by the creditor, the application should contain the following data:

1. name and surname, place of residence, address and PESEL number of the debtor, and if the debtor does not have a PESEL number – other data enabling his unambiguous identification;
2.  the debtor's Tax Identification Number (NIP), if the debtor had such a number within the last ten years prior to the date of submission of the application; 
3. indication of the circumstances justifying the application and their plausibility; 
4. current and complete list of assets with an estimated valuation of its components.

PMR team

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