There is no doubt that individuals conducting business activity or companies or partnerships intending to file for bankruptcy are in a difficult financial situation. Because bankruptcy was created precisely for such entrepreneurs. Such entities, very often, apart from financial problems, have problems with debt collection companies or bailiffs who, as part of the enforcement actions taken, try to collect receivables for creditors of insolvent entrepreneurs.
In accordance with the Code of Civil Procedure, we distinguish the following methods of enforcing monetary claims:
- execution against movable property (movable property);
- enforcement against wages;
- enforcement against bank accounts;
- enforcement of other receivables;
- enforcement of other property rights;
- foreclosure on real estate;
- execution from sea vessels.
The bailiff will try to enforce the performance – using the above-mentioned methods of enforcement. But is it so? must be? Is it possible to submit an application bankruptcy means the end problems with execution?
Itself filing a bankruptcy petition does not suspend enforcement. Filing a bankruptcy petition opens bankruptcy proceedings, which may end with the dismissal or termination of the bankruptcy petition or the issuance of a decision to open bankruptcy proceedings.
It is from this moment, i.e. from the date of the Court's decision to open bankruptcy proceedings, that enforcement proceedings are suspended by operation of law (the bailiff cannot effectively perform enforcement activities, e.g. he cannot conduct an auction, the bailiff cannot also transfer the amounts already enforced to the creditors). This is a very important element of securing the assets of the insolvent entrepreneur, who from that moment on benefits from a specific security against single enforcement, i.e. enforcement not for all creditors but for one or several creditors who They submitted an application execution to the bailiff.
The decision to open bankruptcy proceedings is appealable, so if the legislator had omitted the element of staying the enforcement proceedings, then by the date it becomes final the assets could have been liquidated in the ongoing enforcement proceedings to the detriment of all the creditors.
After the decision declaring bankruptcy becomes final, enforcement proceedings are discontinued and the amounts not released by the bailiffs to the creditors in the suspended enforcement proceedings are transferred to the trustee.
It should also be noted that from the date of opening of bankruptcy proceedings, bailiffs will not be able to initiate new enforcement proceedings, even if the application to initiate them was filed before the opening of bankruptcy proceedings.
Does this mean that from the date of filing an application to open bankruptcy proceedings against an entrepreneur until the opening of bankruptcy proceedings, the debtor's assets are always exposed to seizure by a bailiff?
Well, no. Bankruptcy law provides protection measures for entrepreneurs who want to protect their assets from execution or sale. In order to secure their assets, entrepreneurs who file a bankruptcy petition may be filed also a motion to secure assets by suspending the ongoing enforcement proceedings and prohibiting the initiation of new enforcement proceedings against the assets of the insolvent entrepreneur. Such a motion should be filed together with application for the opening of bankruptcy proceedings and immediately considered by the Court.
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