Distribution and intermediary law: New BGH ruling accelerates receipt of money by the creditor

*by Johannes Fiala, Lawyer (Munich), MBA Financial Services (Univ.Wales), MM (Univ.), Certified Financial and Investment Advisor (A.F.A.), EC Expert (C.I.F.E.), Lecturer (Univ. of Cooperative Education), Banker (www.fiala.de)
Liquidity gap in distribution: A typical emergency situation of the intermediary can be based on the fact that 50% of his Riester contracts run into cancellation ? plus the cancellations from the 2004 LV closing sale. The high revenues led to back and advance tax payments ? the intermediary often has too few reserves for such situations.
In the case of distributors, a glance at the disclosed balance sheets is enough to see who might soon be “swimming down the drain”: This is the benefit of the expert archive with the disclosure procedures according to the German Commercial Code (HGB) and the EC CapCo Directive. Some distributors demand commissions back from the agent ? even a reminder may not help. Then the sales department gets into the situation that the money is missing to finance the commissions from the current business and to transfer them to the agents on time.
If the intermediary waits too long, he might not get anything at all in the insolvency? Commercial experience shows that in the event of insolvency there is usually nothing more to be gained. The available assets may cover court and legal costs, rarely more. The creditors are left empty-handed ? the legislator, meanwhile, is considering reintroducing priority over all other creditors for social security institutions and the tax office.
In the past, you first had to have a “title”, for example an enforcement order or a judgment, and then unsuccessfully enforced before you could file for insolvency as a creditor. These times are now over.
New BGH judgement helps: The Federal High Court (BGH) decided now in all clarity (BGH resolution of 13.06.2006, Az. IX ZB 238/05) that the creditors with the district court/insolvency court can place also then an insolvency request with success, if the demand is several months old ? completely without previous ?fruitless execution ?
In order to make the insolvency credible, it is sufficient that the debtor is “more than six months in arrears”. It is irrelevant whether the creditor is a health insurance fund organised under public law or a private creditor!
On the debtor’s side, insolvency exists if 10% or more of the debts due can no longer be paid. So if there is not enough money to pay at least 90% of all debts due, there is usually insolvency. Of course, it can also be a help if the mediator has good connections with colleagues in order to hear from them as well whether there is a ‘common thread’ in their behaviour.
Payment turbo: According to the BGH, a partial payment is not proof that there is merely a payment stagnation or that the inability to pay has been eliminated. It should not be forgotten that the management of an AG or GmbH (cf. e.g. § 64 GmbHG) must file for insolvency itself after only three weeks of insolvency. Many managers fail to do this and then later find themselves before the criminal court, and are thus also privately and personally liable for the liabilities of their GmbH or AG.
No coercion by threats: Many an intermediary will now consider not only applying for a default summons but also filing for insolvency in good time. Already the announcement of such considerations (?? we will let check, whether ??) can cause true miracles ? suddenly the money is there. However, the creditor should be careful not to threaten the debtor with the application (coercion).
So: Do not threaten (motto: “Barking dogs do not bite!”), but apply. Pointing out that the application has already been made (which must be true) is certainly legitimate. The application can be conveniently withdrawn later; after full payment has been received, of course.
The timely application is in the interest of all creditors, the earlier it is (justifiably) filed, the more assets the insolvency administrator often has available for distribution.
However, such an application can also be rejected by the court with costs ? therefore it is also advisable to consult a legal adviser beforehand if necessary.

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

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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