Bankruptcy Act

TITLE 1 BANKRUPTCY

Chapter 5 Verification of Claims

Article 108 Date to submit claims; date and place of the verification meeting
- 1. Within fourteen days after the bankruptcy order has become final and binding, the magistrate ('rechter-commissaris') shall set:
1° the latest possible date for the submission of claims;
2° the date, hour and place for the verification meeting;
- 2. There must be at least fourteen days between the dates referred to in (1°) and (2°) of the previous paragraph.

Article 109 Liquidator notifies all known creditors of the data necessary for the verification of their claims
The liquidator ('curator') shall notify all known creditors immediately by letter of the decisions meant in Article 108.

Article 110 The way in which claims must be submitted for verification
- 1. Claims must be submitted to the liquidator ('curator') in the form of an invoice or other written statement listing the nature and amount of the claim, with documentary evidence or copies thereof and a statement as to whether or not a right of preference, pledge, mortgage or right of retention is claimed.
- 2. Creditors may require a receipt from the liquidator ('curator').

Article 111 The way in which a submitted claim is verified
The liquidator ('curator') shall compare the submitted invoices with the books, records and statements of the bankrupt debtor; if he disputes the admission of a claim, he shall consult the involved creditor and ask for the submission of any missing documentation and the approval to inspect the books, records and supporting documents of that creditor.

Article 112 List of provisionally admitted claims and list of disputed claims
The liquidator ('curator') shall prepare a list of provisionally admitted claims which he has approved and a separate list of disputed claims with mention of the grounds on which these are contested.

Article 113 Indicating whether a claim has preference or is secured by a mortgage, pledge or right of retention
In the lists referred to in the preceding Article, each claim shall be described together with an indication whether or not the liquidator ('curator') considers the claim to be preferred (privileged) or secured by a mortgage or pledge or whether or not a right of retention may be exercised in respect of the claim. If the liquidator ('curator') only disputes the right of preference or the right of retention, then the claim shall be included on the list of provisionally admitted claims, noting that it is disputed in the before mentioned way and the grounds for doing so.

Article 114 Publication of the lists of provisionally admitted and disputed claims
- 1. The liquidator ('curator') deposits a copy of each of the lists referred to in Article 112 at the office of the clerk of the District Court, to make them available for public inspection without charge for a period of at least seven days prior to the verification meeting.
- 2. No charge will be made for depositing the copies of these lists.

Article 115 Information duty of the liquidator prior to the verification meeting
The liquidator ('curator') shall notify all known creditors in writing that the lists referred to in Article 12 have been deposited in accordance with Article 114, to which notification he adds an invitation for the verification meeting, with mention whether a draft for a final arrangement (composition) with creditors has been deposited as well at the office of the clerk of the court.

Article 116 Bankrupt debtor must attend the verification meeting in person
The bankrupt debtor shall attend the verification meeting in person in order to provide, if asked for by the magistrate (''rechter-commissaris''), all information with regard to facts which have caused the bankruptcy and the state of affairs of the liquidation estate. The creditors may request the magistrate ('rechter-commissaris') to ask the bankrupt debtor to provide information in respect of specific issues indicated by them. The questions put to the bankrupt debtor and the answers given by him shall be minuted in the official record of the verification meeting.

Article 117 Obligations imposed on the Directors of the bankrupt legal person
In the event of the bankruptcy of a legal person, the obligation imposed on the bankrupt debtor pursuant to the previous Article shall be imposed on its Directors.

Article 118 [repealed on 01-05-1977]

Article 119 Rights of the creditors at the verification meeting
- 1. At the verification meeting the magistrate ('rechter-commissaris') shall read out the list of the provisionally admitted claims and the list of the claims disputed by the liquidator ('curator'). Each creditor whose name appears on these lists may ask the liquidator ('curator') to provide information about each claim and why it is included on one of the lists, and may dispute the correctness of these list or dispute the alleged priority ranking (right of preference) of a claim or the alleged right of retention attached to it, or may indicate that he agrees with the contest that the liquidator ('curator') has put forward against it.
- 2. The liquidator ('curator') is entitled to go back on a provisionally admitted or disputed claim, or to demand that the creditor, whose claim is not disputed, neither by the liquidator ('curator') nor by any of the creditors, affirms under oath that his claim is sound; if the original creditor has died, the persons entitled to his claim must state under oath that they believe in good faith that the claim exists and has not yet been satisfied.
- 3. If it is necessary to adjourn the verification meeting, the meeting shall be continued within eight days, at a time fixed by the magistrate ('rechter-commissaris') without giving further notice of that date.

Article 120 Affirmation under oath made by a creditor regarding the soundness of his claim
- 1. The affirmation under oath referred to in paragraph 2 of the preceding Article shall be made in person or through a specially authorised representative before the magistrate ('rechter-commissaris'), either immediately at the meeting or at a later date specified by the magistrate ('rechter-commissaris'). The power of representation may be granted by private deed.
- 2. If the creditor who must affirm his claim under oath is not present at the meeting, the clerk of the court shall notify him immediately of the required affirmation under oath and the day set for making such affirmation under oath.
- 3. The magistrate ('rechter-commissaris') shall provide the creditor with a statement of his affirmation under oath, unless the affirmation under oath is made in the course of a creditors meeting, in which case the affirmation shall be minuted in the official record of that meeting.

Article 121 Official report of admitted (undisputed) claims
- 1. Undisputed claims shall be placed on a list of creditors whose claims have been admitted according to the official record of the meeting. Where it concerns claims to order or to bearer, the liquidator ('curator') shall make a note of the admission on any negotiable instruments endorsed either to order or to bearer.
- 2. The claims for which the liquidator ('curator') has required an affirmation under oath, shall be provisionally admitted until a final decision has been given about their admittance on the date referred to in paragraph 1 of Article 120, depending on whether an affirmation under oath has taken place in respect thereof.
- 3. The official record of the meeting shall be signed by the magistrate ('rechter-commissaris') and the clerk of the court.
- 4. The admission of a claim recorded in the official record of the meeting shall be final and binding in the bankruptcy. The liquidator ('curator') may only demand its nullification if fraud constitutes a ground for voidabality.

Article 122 Procedure when a claim is disputed
- 1. If a claim is disputed, the magistrate ('rechter-commissaris') shall examine if it is possible to come to an agreement to settle the dispute. If he is unable to reconcile the involved parties and the dispute is not already the subject of legal proceedings, he shall refer the matter to a session of the District Court, which session is to be determined by him, without the necessity to serve any summons by bailiff’s writ.
- 2. The advocates (solicitors admitted to the Bar) representing the parties shall make a statement to that effect when the case is called at the hearing.
- 3. If the creditor, who requested for a verification, does not appear at the hearing, then his request is deemed to have been withdrawn; if the person who has disputed the claim does not appear, he is deemed to have withdrawn his contest (dispute) and, in such case, the court shall admit the claim.
- 4. A creditor who has failed to dispute a claim at the verification meeting, may not join or intervene in the legal proceedings.

Article 122a Adjournment of legal proceedings
- 1. If a claim is disputed by the liquidator ('curator'), the legal proceedings shall be adjourned by operation of law when a final arrangement (composition) with the creditors becomes final and binding after it has been sanctioned (approved) by the court, unless pleadings in the matter have already been submitted for judgment, in which case the claim, if admitted, shall be deemed as admitted in the bankruptcy, whereas the bankrupt debtor, where it concerns the decision on the costs of proceedings, shall take the place of the liquidator ('curator').
- 2. The legal proceedings shall be resumed (restarted) in the stage at which they were at the time of their adjournment, when one of the parties, with the consent of the other, files a pleading for that purpose at a cause-list hearing (hearing of the docket judge) or declares by means of an officially served writ that the legal proceedings are resumed (restarted).
- 3. The party who declares in an officially served writ as meant in paragraph 2 that the legal proceedings are resumed (restarted), shall give notice to the other party to appear at the cause-list hearing (hearing of the docket judge) on the date on which it wishes the matter to be called. The notice periods required for the service of a writ of summons must be observed when such a notice to appear is served. The parties must again be represented by an advocate (solicitor admitted to the Bar).
- 4. [repealed]
- 5. If a claim is disputed by another creditor and the sanctioning (approval by the court) of the final arrangement (composition) with the creditors in the bankruptcy has become final and binding, then the legal proceedings may only be continued by parties in order to obtain a decision of the court on the costs of proceedings.

Article 123 Production of evidence for a disputed claim of a creditor
A creditor whose claim is disputed is not obliged to produce further supporting evidence than he would have to produce towards the bankrupt debtor.

Article 124 Notification of the creditor whose claim is disputed
- 1. If a creditor whose claim is disputed is not present at the verification meeting, the clerk of the court shall immediately notify him of the dispute and of the matter being referred to the District Court.
- 2. In the legal proceedings the creditor may not appeal to any lack of such notification.

Article 125 Provisional admittance of disputed claims by the magistrate
Claims which are disputed may be admitted provisionally by the magistrate ('rechter-commissaris') up to an amount determined by him. If the priority ranking (right of preference) of a claim is disputed, the magistrate ('rechter-commissaris') may admit it provisionally.

Article 126 Dispute of a claim by the bankrupt debtor
- 1. The bankrupt debtor may also dispute the admission of a claim, either in whole or in part, or the admission of any alleged ranking order (right of preference), summarily (briefly) setting out his grounds for doing so. In such an event the dispute and its grounds shall be minuted in the official record without the parties being referred to the court and without preventing admission of the claim in the bankruptcy.
- 2. Any dispute which is not supported by a statement of grounds or which does not include the whole claim but does not specifically indicate which part is admitted and which is disputed, will not be regarded as being disputed.

Article 127 Moment that a claim must be submitted in order to be verified
- 1. Claims which are submitted to the liquidator ('curator') after the expiry of the period referred to in Article 108, under (1°), but not less than two days prior to the date of the verification meeting, shall be verified at the meeting upon request, unless the liquidator ('curator') or any of the creditors raises an objection against this.
- 2. Claims submitted after this date shall not be verified at the verification meeting.
- 3. The provisions of the two preceding paragraphs do not apply if the creditor lives outside the Netherlands and, due to this, is unable to submit his claim earlier.
- 4. If an objection is raised as meant in paragraph 1 or if there is a dispute as to whether there is an inability to submit a claim in time as referred to in paragraph 3, the magistrate ('rechter-commissaris') shall decide after consulting the verification meeting.

Article 128 Admission of interest accrued after the declaration of bankruptcy
Interest accrued after the declaration of bankruptcy may not be admitted unless they are secured by a pledge or mortgage. In that event, this interest will be admitted pro memoria. To the extent that the interest is not covered by the sale proceeds of the security, the creditor cannot derive any rights from such admisson.

Article 129 Admission of a claim under a condition subsequent
A claim under a condition subsequent shall be admitted for the total amount, without prejudice to the effect of the condition when it is fulfilled.

Article 130 Admission of a claim under a condition precedent
- 1. A claim under a condition precedent may be admitted for its value at the time of the declaration of bankruptcy.
- 2. If the liquidator ('curator') and the creditors cannot come to terms on this way of admission, the claim shall be admitted provisionally for the full amount.

Article 131 Admission of claims that are not yet due and demandable
- 1. A claim with regard to which it is uncertain at which date it will become due and demandable and a claim which entitles the creditor to receive periodic payments (by instalments) shall be admitted for its value at the date of the declaration of bankruptcy.
- 2. Claims which become due and demandable within one year after the day on which the application for the bankruptcy order was lodged, shall be treated as if they were due and demandable already at that moment. Claims which become due and demandable one year after the before mentioned moment shall be admitted for their value at the day on which one year since the start of the bankruptcy has expired.
- 3. When calculating the amount of a claim, account is taken only of the moment and the way of payment, any profit opportunity and, if the claim bears interest, the agreed rate of the interest.

Article 132 Submission of the unpaid part of a secured claim as an unsecured claim
- 1. Creditors whose claims are privileged or secured by a mortgage, a pledge or a right of retention and who can prove that it is likely that a part of their claim will not be recovered from the sale proceeds of the assets to which their privilege or security right is attached, may demand that the rights of an unsecured creditor are conferred on them for that part, while they retain priority (right of preference) to the extent of the sale proceeds of the assets to which their privilege or security right is attached.
- 2. The amount for which mortgagees or pledgees are ranked with priority (have a right of preference) is determined with due observance of Article 483e of the Code of Civil Procedure, on the understanding that the time on which the statement is prepared according to that Article shall be substituted by that of the date of the start of the bankruptcy.

Article 133 Admission of claims with an uncertain value or a value in foreign currency
Claims having an indeterminate or uncertain value or of which the value is not expressed in Dutch currency or money at all, shall be admitted for their estimated value in Dutch currency.

Article 134 Admission of claims to bearer
Claims to bearer may be admitted in the name of the ‘bearer’. Each admitted claim to bearer shall be considered as a claim of a separate creditor.

Article 135 [repealed on 01-01-1992]

Article 136 Admission of claims of a co-debtor
- 1. If one or more debtors, who are jointly and severally liable for a joint debt, have been declared bankrupt, then the creditor may present his total claim, for the part still due to him at the day of the declaration of bankruptcy, in the bankruptcy of each of these debtors, until his claim has been settled in full.
- 2. A debtor who is jointly and severally liable may be admitted, if necessary provisionally, for the amounts for which he has or will have a claim against the bankrupt debtor pursuant to their mutual legal relationship as joint and several co-debtor. Such a claim shall, however, be admitted only:
a. to the extent that the creditor himself may not submit a claim or, although entitled to do so, does not submit a claim in the bankruptcy of the bankrupt co-debtor;
b. in the event that the creditor is paid during the bankruptcy for the total amount of his submitted claim;
c. to the extent that, for any other reason, the admission of the claim of the co-debtor against the bankrupt co-debtor does not prejudice the unsecured creditors in respect of the percentages to be distributed to them.

Article 137 Publication of the report and the official record of the verification meeting
- 1. After verification, the liquidator ('curator') makes a report on the state of affairs of the liquidation estate and provides all information required by the creditors in respect thereof. The report and the official record of the verification meeting shall be lodged after the end of the verification meeting at the office of the clerk of the court and shall be available for public inspection free of charge. The lodging is also free of charge.
- 2. After the official record has been lodged, the liquidator ('curator') and also the creditors and the bankrupt debtor may request the District Court to correct the official record if the documents themselves show that the official record contains a mistake.

Chapter 5A Simplified Winding-up of a Bankruptcy

Article 137a No assets available to settle unsecured claims even in part
- 1. If it has been summarily (briefly) established that the assets from which non-preferential claims may be paid, will not be sufficient to even settle these claims in part, then the magistrate ('rechter-commissaris') may order, upon the request of the liquidator ('curator') or of his own motion (ex officio), that the unsecured claims need not be submitted and that no meeting for the verification of claims shall be held.
- 2. The liquidator ('curator') shall immediately notify all known creditors in writing of the order referred to in paragraph 1 and shall ensure that a publication thereof is made in the Government Gazette.
- 3. If an order as referred to in paragraph 1 is given, the present Chapter shall apply. Chapter 5 shall not apply. Articles 128 up to and including 136 of Chapter 5 shall apply accordingly in respect of unsecured claims. Chapters 6 and 7 shall not apply, except as otherwise provided hereinafter.

Article 137b Liquidator contests a claim or the priority ranking (right of preference) attached to it
- 1. The liquidator ('curator') shall check which claims are privileged or secured by a pledge, a mortgage or a right of retention.
- 2. If the liquidator ('curator') contests a claim or the prior ranking (right of preference) attached to it, he shall notify the involved creditor thereof and shall confer with him for the purpose of settling this dispute.
- 3. If the liquidator ('curator') and the creditor referred to in the preceding paragraph do not come to terms on a settlement of the dispute, the liquidator ('curator') shall put the question to the magistrate ('rechter-commissaris'). Article 122, paragraph 1, 2 and 3, shall apply accordingly.
- 4. The bankrupt debtor may notify the liquidator ('curator') of his objections against the claim or against the ranking attached to it; if the liquidator ('curator') is unable to remove these objections, he shall put the dispute to the magistrate ('rechter-commissaris'). Article 126 shall apply accordingly.

Article 137c Realisation of the assets of the liquidation estate; distribution plan
- 1. The liquidator ('curator') shall start with the realisation of the (assets of the) liquidation estate. Articles 175, second paragraph, 176 and 177 shall apply accordingly.
- 2. The liquidator ('curator') shall draw up a distribution plan, which shall include a list of the receipts and expenditure, including the salary of the liquidator ('curator'), as well as the names of the creditors with a privileged claim or a claim secured by a pledge, mortgage or a right of retention, and the amount of the claim of each of them and the distributions to be received on account thereof
- 3. For claims with regard to which a dispute as referred to in Article 122 is pending, the liquidator ('curator') shall make a reservation in the distribution plan for percentages over the full amount and percentages for the costs still to be made in connection therewith. Article 194 shall apply accordingly.

Article 137d Approval of the distribution plan by the magistrate
- 1. The liquidator ('curator') shall submit the distribution plan for approval to the magistrate ('rechter-commissaris').
- 2. After the magistrate ('rechter-commissaris') has approved the distribution plan, the liquidator ('curator') shall deposit a copy of that plan and a report on the condition (state) of the liquidation estate at the office of the clerk of the court where it shall remain available for public inspection, free of charge, for a period of ten days.
- 3. The liquidator ('curator') shall announce in the Government Gazette that the before mentioned copy and report are deposited for inspection.
- 4. The liquidator ('curator') shall notify all known creditors thereof in writing, while informing them that the planned distribution does not relate to unsecured claims.
- 5. Article 182 shall apply accordingly.

Article 137e Objections raised against the deposited distribution plan
- 1. During the period meant in Article 137d, paragraph 2, each creditor may raise an objection against the distribution plan that is deposited at the office of the clerk of the court by lodging a petition stating his reasoned objections with the office of the clerk of the court who shall issue a receipt to him.
- 2. The petition stating the objections shall be attached to the plan of distribution.
- 3. An unsecured creditor may not base his objection only on the non-listing of his claim on the distribution plan that is deposited at the office of the clerk of the court.
- 4. Articles 185 and 187 shall apply accordingly.

Article 137f State of insolvency; distribution of fixed amounts
- 1. After expiry of the period meant in Article 137d, paragraph 2, or, if an objection is raised, after the order in respect thereof has become final and binding, the liquidation estate shall by operation of law enter into a state of insolvency, and the liquidator ('curator') shall proceed to make the fixed distributions.
- 2. Articles 188, 189, 190, 192 and 193 shall apply accordingly.

Article 137g New assets discovered during the winding-up process
- 1. Where, during the winding-up, new assets are discovered of such value that even the unsecured claims can be paid, either in full or in part, from the sale proceeds of these assets, the magistrate ('rechter-commissaris') shall order a verification meeting and, for such purpose, shall set the date, hour and place and the latest possible date for the submission of claims. Article 108, paragraph 2, shall apply.
- 2. The liquidator ('curator') shall immediately notify all known creditors of the order mentioned in the preceding paragraph and make an announcement thereof in the Government Gazette.
- 3. In that event, Chapters 5, 6 and 7 of the present Act shall become applicable again.