Link zu Privat Insolvenz (ganz oben 1. Seite)

Release of a self-employed activity

If a debtor is self-employed, the path to insolvency is also open to him. Depending on whether he is self-employed at the time the insolvency proceedings are opened, or whether he has previously been self-employed, he can either go into consumer insolvency proceedings or regular insolvency proceedings.
But what happens to my self-employed activity when I go into insolvency? Can I continue this or do I have to look for a new job as an employee?
If the debtor is a natural person who is self-employed at the time the insolvency proceedings are opened and wishes to continue to do so, or if the debtor intends to take up self-employment after the insolvency proceedings have been opened, the insolvency administrator basically has three options for dealing with the debtor’s self-employment:
Continuation of the business together with the debtor:

All new business is conducted in the name of the administrator, the debtor only appears as his representative. The business income belongs to the estate. The debtor is paid a remuneration from these by the insolvency administrator. The debtor does not bear any entrepreneurial risk, but also does not participate in the economic success of the business.
Toleration of the debtor’s economic activity: The toleration of economic activity by the insolvency administrator differs only slightly from the above-mentioned continuation of operations.

What happens to my property if I go bankrupt? Can I save it? Can the bank simply cancel my loan?

Foreclosure avoidable?

Real estate belonging to you is part of your assets and is therefore generally subject to compulsory execution (Section 165 InsO). However, the insolvency administrator has the option of releasing the property, which means that it then no longer belongs to the insolvency estate and you can dispose of it again. The insolvency administrator will grant such a release if he is of the opinion that realization of the property will not increase the insolvency estate. The first prerequisite for this is that the property is indebted.

This is the case if the expected sales proceeds are lower than the debts still weighing on the property or if it seems hardly possible for the insolvency administrator to find a potential buyer. In these cases, the insolvency administrator will usually release your property.

What happens to my loan?

Another question is what happens to your bank’s loan and how you can come to an agreement with them so that the bank does not in turn foreclose on your property. The bank is regularly entitled to do this, as it has registered a land charge as security for the loan. First of all, you should actively seek a personal meeting with your contact person at your bank.

I am in arrears with my rent payments. Can the landlord simply “throw” me out of the apartment?
In order for the landlord to be able to “kick you out” of your apartment, he must first give you lawful notice of termination and subsequently file an eviction action against you. Because of the different prerequisites, a distinction must first be made between an ordinary (timely) termination and an extraordinary termination without notice:
Prerequisites for an ordinary termination in case of default of payment
For this, the tenant must have culpably violated his contractual obligations to a not insignificant extent (Section 573 (2) BGB). In the case of an ordinary (timely) termination, this is generally only the case if the tenant is in arrears with an amount of at least one month’s rent and is also in arrears for at least one month. The default in payment cannot be cured in the case of ordinary termination – in contrast to extraordinary termination without notice – by subsequent payment of the rent (Section 569 (3) No. 2 BGB). However, the tenant has the option of invoking unforeseeable economic bottlenecks and demonstrating that there has been no culpable breach of duty in this respect. In addition, the landlord must have complied with the notice periods (Section 573 c (1) BGB). Pursuant to Section 574 of the German Civil Code (BGB), the tenant has a right of objection if the termination of the tenancy would mean hardship for him, his family or another member of his household.

Can I be terminated from my job if I go into insolvency?

In principle, private insolvency is not a reason for your employer to legally terminate you. You do not even have to inform him that you are going through such proceedings. He also has no right to ask about it, because debts are not an unlawful misconduct under German law. Nevertheless, you must assume that your employer will normally find out about your insolvency, since the responsible insolvency administrator will usually garnish your income. Private insolvency was introduced as a legitimate means for consumers to make a new start in life without debts. If your employer were entitled to terminate your employment due to the insolvency, this would run counter to this idea. Something else may apply if there are other circumstances such as embezzlement or fraud. However, there are exceptions for certain professions. In the case of people who deal with money in their jobs, have to meet increased security requirements or occupy a more senior position, a personal insolvency can lead to a right of termination for the respective employer because the necessary relationship of trust no longer exists.

This can apply, for example, to bank employees, to employees in aviation security or also to authorized signatories with their special powers in companies.

I have taken out a life insurance policy as a retirement provision. Can this be seized during insolvency?

In principle, a private life insurance policy is part of the debtor’s assets and can therefore be liquidated by the insolvency administrator, i.e. terminated. However, many debtors have paid into a private life insurance policy for years as an additional or sole retirement pension. Can this now simply be seized in the insolvency?

(Excursus: A distinction must be made between this life insurance policy for old-age provision and a life insurance policy taken out only in the event of the policyholder’s death. The latter is attachable insofar as it exceeds the amount of €3,579, cf. section 850b (1) no. 4 ZPO).

No, they can be protected from garnishment under certain conditions. How these conditions are is regulated in § 851c paragraph 1 ZPO. According to this, life insurance policies may only be attached like earned income (i.e. they are subject to attachment protection) if

The benefit is granted at regular intervals for life and not before the insured person reaches the age of 60 or only in the event of occupational disability,
2. the claims arising from the contract may not be disposed of,
3. the designation of third parties other than survivors as beneficiaries is excluded, and
4. the payment of a lump-sum benefit, with the exception of a payment in the event of death, has not been agreed.

Accordingly

a non

I have taken out a life insurance policy as a retirement provision. Can this be seized during insolvency?

In principle, a private life insurance policy is part of the debtor’s assets and can therefore be liquidated by the insolvency administrator, i.e. terminated. However, many debtors have paid into a private life insurance policy for years as an additional or sole retirement pension. Can this now simply be seized in the insolvency?

(Excursus: A distinction must be made between this life insurance policy for old-age provision and a life insurance policy taken out only in the event of the policyholder’s death. The latter is attachable insofar as it exceeds the amount of €3,579, cf. section 850b (1) no. 4 ZPO).

No, they can be protected from garnishment under certain conditions. How these conditions are is regulated in § 851c paragraph 1 ZPO. According to this, life insurance policies may only be attached like earned income (i.e. they are subject to attachment protection) if

The benefit is granted at regular intervals for life and not before the insured person reaches the age of 60 or only in the event of occupational disability,
2. the claims arising from the contract may not be disposed of,
3. the designation of third parties other than survivors as beneficiaries is excluded, and
4. the payment of a lump-sum benefit, with the exception of a payment in the event of death, has not been agreed.

Accordingly

a non

Do I have to file my tax return during insolvency?
After the opening of insolvency proceedings until their termination, i.e. in the case of consumer insolvency until the beginning of the period of good conduct, you as the debtor do not have to file your tax return yourself.
Instead, only the insolvency administrator responsible for you is entitled and obliged to prepare and submit the tax returns for you. This results from section 80 InsO in conjunction with section 34 (3) sentence 1 AO. The insolvency administrator must even prepare and submit the tax returns for years further back in time, insofar as the debtor has not done so. You as the debtor do not have to bear the costs for this either, but these are paid from the insolvency estate (cf. BFH decision of 19.11.2007 – VII B 104/07).
However, you have the obligation to provide the insolvency administrator with all information and documents necessary for the preparation of the tax return. If you fail to comply with this obligation, this is a breach of your duty to cooperate and may result in the refusal of residual debt discharge, Section 290 (1) No. 5 in conjunction with Section 97 InsO.
However, once the formal insolvency proceedings have been terminated, i.e. at the start of the period of good conduct, you are again obliged to prepare and submit your tax return yourself.

First of all, it is important to note that a company car only affects the calculation of the garnishment allowance if it is also expressly released for private use by the employee. Whether and how this actually happens is not relevant in this case.
In this case, the so-called 1% rule applies. This leads to 1% of the list price of the company car being added to the employee’s gross income each month. This amount is then deducted from the net income.
For electric cars costing up to 60,000 euros that are also approved for private use as company cars, the 0.25% rule applies; for plug-in hybrid and fuel cell vehicles as well as more expensive service electric cars, the 0.5% rule applies.
In the event of insolvency or wage garnishment prior to the opening of insolvency proceedings, this has two negative consequences for the debtor concerned:
The amount used to calculate the garnishable income is higher, so more is garnished from the debtor.
After the garnishable amount has been deducted, the amount previously added is also deducted, so that in extreme cases the debtor may even fall below the garnishment exemption limit.
To illustrate, here is an example:
Assuming an employee without maintenance obligations earns €2,500 gross and is provided by his employer with a company car with a replacement value of €50,000 for private use, Da

How long can my creditors enforce their claims? Do the claims become time-barred at some point?

In principle, all claims are subject to the statute of limitations. However, the periods of limitation vary greatly. A distinction must be made here between “normal” claims and titled claims.

The statute of limitations for claims that are not titled (i.e. that are not based on an enforceable court judgment or lawsuit settlement, entry in the insolvency table or an enforcement order) is generally three years (§195 BGB).

The limitation period always begins at the end of the year in which the claim arose and the creditor knew or should have known about it.

The limitation period for the titled claims already listed above is 30 years (Section 197 (1) nos. 3-6 BGB).

For these, the statute of limitations begins with the legal force or creation of the title (§ 201 BGB). However, it may also be possible to shorten the limitation period for titled claims to ten years by means of so-called “forfeiture”. Forfeiture is when the creditor has failed to enforce his titled claim for a period of 10 years, i.e. has not made any attempts at enforcement.

It is also important to note that the statute of limitations can run for a significantly longer period if the statute of limitations is suspended before expiry by legal action (Section 204 of the German Civil Code) or by payments on account by the debtor or by the authorities.

My employer pays me expenses. Can these be seized?

What are expenses anyway?

Expenses are higher expenses incurred by the employee because he travels for work and therefore has to pay extra for his meals. To make up for the difference that occurs, their employer pays them expenses in addition to their income.

Can these expenses be seized by my creditors?

In principle, your income is subject to garnishment by creditors. However, there are a number of payments that are exempt from this. These are defined by the legislator in § 850a ZPO. Expenses are included in the allowances listed there and are therefore not subject to garnishment, provided they do not exceed the scope of the usual. Remuneration that wage tax guidelines recognize as tax-free is to be regarded as customary. To check whether the amount paid to you is to be regarded as customary, please compare it with the current overview of the reported lump sums for additional subsistence expenses and overnight expenses for business and business-related business trips abroad published by the Federal Ministry of Finance. In addition, expenses must be calculated separately from income and reported independently in terms of amount.

What are the insolvency offenses?

The most common insolvency offenses are dragging out of insolvency, withholding and embezzlement of social security contributions and the so-called bankruptcy offenses (bankruptcy, violation of accounting obligations and favoring creditors).

Procrastination in Insolvency, Section 15a InsO

Pursuant to Section 15a of the German Insolvency Code (InsO), failure to file an application for commencement of insolvency proceedings in good time or at all in the event of insolvency (Section 17 InsO) or overindebtedness (Section 19 InsO) of a legal entity is punishable by imprisonment of up to three years or a fine. The application must be filed without culpable delay, at the latest three weeks after the occurrence of insolvency or overindebtedness.

As far as punishability is concerned, insolvency delay only affects the managing directors of a GmbH or UG (limited liability company), the board of directors of an AG or a cooperative and the director of a Ltd. In the case of lack of management, it also affects the shareholders of a GmbH or the members of the supervisory board of an AG or cooperative.

In addition, it leads to the liability of the aforementioned persons with their private assets both in the internal relationship vis-à-vis the company and in the external relationship vis-à-vis the creditors. Liability is therefore not only limited to the capital contribution.

This does not apply, however, to the board of directors of associations, partnerships or sole proprietors. For these, an insolvency