– OLG Naumburg: Consultants are liable for losses and incorrect advice –
Insolvency administrator draws company and private pension provision completely to an investment broker and insurance brokers are happy to advertise company and private pension provision for entrepreneurs as “seizure-proof and insolvency-proof”.
However, this is not the case, as a recent ruling by the OLG Naumburg (Case No. 1 U 74/07) of 17 January 2008 shows.
Car dealership owner loses endowment insurance and private pension insurance
The entrepreneur had secured the endowment insurance “by pledging it to his wife” – later it turned out that the pledge was invalid. The insurance customer had also granted his wife the subscription right to the pension insurance. This did not help either – the insolvency administrator confiscated the entire assets of both contracts to the estate.
Insolvency administrator cancels all life insurance policies and thus pays procedural costs It is typical that intermediaries of life insurance policies receive the “free” forms for pledging or for the subscription right pre-printed by the insurer. Just as often, it then turns out that either the content is legally incorrect and/or the way it is handled is unknown: This is how it happens that the insurance customer only realises in the event of insolvency that he is dealing not only with free agreements but above all with “legally ineffective” agreements:
This means that the customer loses his or her entire pension provision and that of his or her family.
In the case decided, the insolvency administrator had used all the money from the two insurance policies to pay the court and procedural costs. There was therefore no (partial) debt relief at all.
The entrepreneur had applied for the “regular insolvency proceedings” with higher costs for insolvency trustees and court – in case of alternative private insolvency these costs would not have been incurred. And finally, the legal dispute with the insolvency administrator over the two contracts had also contributed to the increase in procedural costs, including the costs incurred by the insolvency administrator. The entrepreneur had long since ceased operations when he filed his application, which is why the less expensive consumer insolvency proceedings would also have been considered. The legal adviser was therefore held liable for the additional costs and ordered to pay them.
However, intermediaries and consultants of company and private pension schemes are also liable for incorrect advice. Especially when no legal advisor can be held liable and now that the injured parties know that the advisor or agent is backed by a solvent liability insurer, the number of liability cases is increasing. As a rule, these persons are hardly ever trained to check complex legal issues and model forms for effectiveness and to ensure correct application. Only the delegation of responsibility to suitable professionals can be exempt from liability here – the liability insurance of the occupational pension consultant generally does not cover damages due to incorrect tax and legal advice.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
www.experten.de (published on 24.09.2008)
www.gentnerverlag.de (Air conditioning and refrigeration, issue 10/2008)
www.dzw-online.de (published in Die Zahnarztwoche, issue 12.2009, page 37 under the heading: Entrepreneur loses complete pension assets to insolvency administrator
www.fachverband-metall-bayern.de (published in Bayern Metall, issue 01/2009, page 19 under the heading: Entrepreneur loses complete pension assets to insolvency administrator
The Practitioner, issue 03/2009, page 101
www.kommunalverlag.de (published in Kommunalwirtschaft 07-08/2009, page 466-468 under the heading: How entrepreneurs are financed by company pension schemes ready for bankruptcy )
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About the author
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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