Can a creditor file for bankruptcy of a debtor?

The basic tool for recovering receivables 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.

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

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.

Additionally, an application for an announcement bankruptcy should contain:

1. the debtor’s first and last name or their name and PESEL number or number in the National Court Register, and in their absence – other data enabling their unambiguous identification, place of residence or registered office, address, and if the debtor is a partnership, legal person or other organizational unit without legal personality, to which a separate act of law grants legal capacity – the first and last names of representatives, including liquidators, if appointed, and in addition, in the case of a partnership – the first and last names and place of residence of partners liable for the company’s obligations without limitation with all their assets;
2. Tax Identification Number (NIP), if the debtor has such a number;
3. indication of the place where the debtor’s main centre of business is located;
4. indication of the circumstances justifying the application and their plausibility;
5. information whether the debtor is a public company within the meaning of the provisions of the Act of 29 July 2005 on public offering and conditions for introducing financial instruments to an organised trading system and on public companies.