May 30, 2024 rcplegal 0 Comments

The debtor in a state of insolvency is obliged to submit a Request to Open Insolvency Proceedings to the Tribunal in whose jurisdiction their headquarters is located, within a maximum of 30 days from the onset of the state of insolvency.

In principle, the debtor company must prove that at the date of filing the Request, it does not have available liquid funds to cover certain, liquid, and due debts to the state budget, banks, suppliers, other creditors, associates, or employees, etc., debts that exceed the threshold value provided by Law 85/2014, namely 50,000 lei, and have been overdue for more than 60 days.

The request addressed to the Tribunal must be accompanied by proof of notification to the competent fiscal authority regarding the intention to open insolvency proceedings and proof of payment of the judicial stamp duty in the amount of 200 lei.

The debtor’s request must be accompanied by the following documents:

a) The latest annual financial statement, certified by the administrator and auditor, and the trial balance for the month preceding the filing date of the request to open the proceedings;

b) A complete list of all the debtor’s assets, including all accounts and banks through which the debtor operates its funds; for encumbered assets, details from the publicity registers will be mentioned;

c) A list of the names and addresses of the creditors, regardless of the nature of their claims: certain or conditional, liquid or illiquid, due or not yet due, uncontested or contested, indicating the amount, cause, and preferential rights;

d) A list of payments and asset transfers made by the debtor in the 6 months prior to the filing of the introductory request;

e) The profit and loss account for the year preceding the request submission;

f) A list of the members of the economic interest group or, if applicable, of the associates with unlimited liability for partnerships and limited partnerships;

g) A statement indicating the debtor’s intention to enter simplified or reorganization proceedings, according to a plan, by restructuring the activity or by liquidating, in whole or in part, the assets, to settle its debts;

h) A brief description of the methods considered for reorganizing the activity;

i) A declaration on the debtor’s own responsibility, authenticated by a notary or certified by a lawyer, or a certificate from the agricultural companies’ register or, as applicable, the trade register or other registers in the territorial area where the professional/social headquarters is located, indicating whether the debtor has been subject to judicial reorganization procedures under this law within the 5 years preceding the filing of the introductory request;

j) A declaration on the debtor’s own responsibility, authenticated by a notary or certified by a lawyer, indicating that the debtor has not been definitively convicted for committing an intentional crime against property, corruption, service, forgery, the crimes provided by Law no. 31/1990, republished, with subsequent amendments and completions, Law no. 129/2019, with subsequent amendments and completions, Law no. 227/2015, with subsequent amendments and completions, Law no. 241/2005, with subsequent amendments and completions, Law no. 21/1996, as well as the crimes provided in art. 240 and 241 of Law no. 286/2009, with subsequent amendments and completions, in the last 3 years preceding the opening of the proceedings;

k) A certificate of admission to trading on a regulated market of securities or other issued financial instruments;

l) A statement indicating whether the debtor is a member of a group of companies, specifying these;

m) Proof of the unique registration code;

n) Proof of notification to the competent fiscal authority.

The above-mentioned documents must be submitted with the request to open the proceedings or, at the latest, by the court date set by the Bankruptcy Judge.

Failure to submit the documents provided in items a) to g) and k) to n) will result in the rejection of the request to open the proceedings, while failure to submit the documents provided in items h) to j) will result in the loss of the right to submit a reorganization plan.

An important aspect to mention is that according to art. 66 para. (9) of Law no. 85/2014, the premature filing of a request to open the proceedings in bad faith by the debtor entails the debtor’s patrimonial liability for the damages caused.

The debtor’s request will be judged urgently, within 10 days, in the council chamber, without summoning the parties.

After submitting the request to open the proceedings, in urgent cases that would endanger the debtor’s assets, the bankruptcy judge may urgently order, in the council chamber and without summoning the parties, the provisional suspension of any enforcement proceedings against the debtor’s assets until a decision is made on the request to open the proceedings.

Author: Atty. Ionut Sfetcu

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