Consumer insolvency and residual debt discharge; application

Insolvency law provides for separate consumer insolvency proceedings for persons who are not engaged in self-employed economic activity, which under certain conditions can lead to a discharge of residual debt after three or five years.

Description

Consumer insolvency proceedings are designed to give people in financial difficulties a fresh start by discharging their residual debt. It can be initiated in the event of the debtor's insolvency or threatened insolvency and leads to a discharge of residual debt under certain conditions. Any natural person has access to the procedure, provided he or she is not engaged in self-employed economic activity. If this was the case in the past, the consumer insolvency proceedings only apply if the financial circumstances are manageable (fewer than 20 creditors) and there are no claims against the debtor from employment relationships.

The consumer insolvency proceedings are divided into several procedural stages: out-of-court debt settlement, court proceedings on the debt settlement plan, and consumer insolvency proceedings with residual debt discharge after a three-year period of good conduct (for opening petitions filed since October 1, 2020). The latter two stages of the proceedings are only carried out if one of the previous stages has not already been successful.

Out-of-court debt settlement

Before filing an insolvency petition, the debtor must attempt an out-of-court debt settlement with his creditors. He must draw up a plan in which he sets out his income and asset situation and submits a concrete proposal for debt settlement.

Even when drawing up the plan, the debtor will seek the help of a person or body suitable for debt counseling. By profession, suitable persons are in particular lawyers, legal advisors, notaries and tax consultants. Other suitable bodies in Bavaria are primarily the debt counseling agencies that have been recognized as such by the governments. Recognition in another country is equivalent to recognition in Bavaria. Information may be obtained from the governments and the insolvency courts (local courts).

Court proceedings on the debt settlement plan

If the out-of-court debt settlement proceedings do not lead to an agreement, the debtor may apply to the court for the opening of insolvency proceedings. The application must be accompanied by further documents and declarations, in particular a debt settlement plan. It contains the debtor's proposal for the implementation of the court debt settlement. If no creditor objects to the debt settlement plan, it is deemed to be accepted. It then has the effect of a court settlement, i.e. the debtor no longer has to meet the creditors' original claims, but only the liabilities listed in the debt settlement plan. The court can replace the consent of individual creditors who have expressly not agreed to the plan under certain conditions at the request of a creditor or the debtor.

Consumer insolvency proceedings with discharge of residual debt after a three-year period of good conduct.

If the court settlement attempt also fails, the court decides on the application to open insolvency proceedings. If the necessary conditions are met, the court opens the proceedings. The court appoints an insolvency administrator who realizes the insolvency estate, i.e. the debtor's attachable assets. When the insolvency proceedings are opened, the insolvency court also makes a decision on the admissibility of the debtor's application for residual debt discharge. The application for discharge of residual debt may, among other things, be inadmissible if the debtor has already been granted discharge of residual debt in the past or has been refused discharge of residual debt on account of an insolvency offense or if the debtor has breached duties of disclosure or cooperation before or after the application for commencement of insolvency proceedings. The discharge of residual debt was previously granted by the court after a period of good conduct of six years. Due to the new legal situation applicable from October 1, 2020, the term of the residual debt discharge proceedings will now be a uniform three years. Thus, in all insolvency proceedings filed from October 1, 2020, residual debt discharge will already be granted after three years from the opening of the insolvency proceedings if there is no reason for refusal. For insolvency applications filed between December 17, 2019 and October 1, 2020, the previously regular period of six years will be gradually reduced.

During the period of good conduct, the debtor must transfer the attachable portion of his earned income or a substitute benefit granted for it (e.g., unemployment benefit) to a trustee appointed by the court. The debtor is obliged, among other things, to engage in appropriate gainful employment or to seek such employment. The debtor's obligation to work even begins with the opening of proceedings. The discharge of residual debt is to be refused if this has been applied for by an insolvency creditor who has filed his claim and the debtor has intentionally or negligently breached his obligation to work or his other obligations up to the end of the period of good conduct and has thereby impaired the satisfaction of the insolvency creditors. With the discharge of residual debt, the debtor is discharged of all debts existing at the time of commencement of the insolvency proceedings. However, liabilities arising from a deliberately committed tort, from fines, penalties and administrative fines, from arrears of statutory maintenance which the debtor has deliberately failed to provide in breach of his duties, from a tax debt relationship if the debtor has been convicted of a tax offence by a final court decision in connection therewith, and from interest-free loans granted to the debtor to settle the costs of the insolvency proceedings are excluded from the discharge of residual debt. The three-year residual debt discharge procedure can only be applied once for each debtor. If a debtor has to file for insolvency again after being granted residual debt discharge in the three-year procedure, he can only obtain residual debt discharge in the second procedure after five years. A second insolvency petition is also only possible after eleven years.

Forms

  • Form, Bavaria-wide: Antragsformular für das Verbraucherinsolvenzverfahren und das Restschuldbefreiungsverfahren
    Please note

    This form has to be signed and sent to the responsible authority. You can sign the form manually and send it by email/fax or sign the form electronically with your qualified electronic signature an send it by (secure) email. If the responsible authority has set up a De-Mail account, you can also send the form by De-Mail using an sender-confirmed message.

    Amtlicher Vordruck für das Verbraucherinsolvenzverfahren nebst Ausführhinweisen (bundeseinheitliches Formular)

Fees

  • Naturally, no court fees are charged for out-of-court debt settlement. The debt counseling offices of the non-statutory welfare organizations, local authorities and administrative districts generally offer their assistance free of charge. If a member of the legal profession is called upon, fees will be charged. Under certain circumstances, these can be paid for by means of counseling assistance under the Counseling Assistance Act (Beratungshilfegesetz), which is granted by the local courts.

    The court proceedings on the debt settlement plan are subject to a fee. The amount of the court fees depends on the debtor's assets to be distributed. In addition, the debtor has to bear the court expenses for the necessary notifications to the creditors.

    The costs of the insolvency proceedings consist mainly of the procedural fee and the publication costs incurred, as well as the remuneration and expenses of the insolvency administrator. Insofar as the debtor's assets are not expected to be sufficient to cover the costs of the proceedings and discharge of residual debt is not obviously to be refused, the Insolvency Code provides for the possibility of deferral. If this is granted, the debtor may additionally be assigned a lawyer of his choice who is prepared to represent him if this appears necessary despite the care incumbent on the court. The deferral and the assignment of a lawyer can only be granted if the debtor applies for it to the insolvency court. The effect of the deferral is that the state treasury may claim the costs against the debtor only in accordance with the provisions laid down by the court, as a rule only after the granting of discharge of residual debt.

Status: 09.06.2022

Responsible for editing: Bayerisches Staatsministerium der Justiz

Contains machine translated content. Show the original content

  • Online transactions, Bavaria-wide
  • Online transactions, locally limited
  • Prefillable Form, Bavaria-wide
  • Legal bases, Bavaria-wide
  • Legal bases, locally limited
  • Fees, Bavaria-wide
  • Fees, locally limited
Bild zur Leistungsbeschreibung

Responsible for you

If you select a location under "Localization" the contact details of the responsible authority and, if applicable, locally valid information will be displayed.