Recovery of payments made from the bank account after the date of bankruptcy

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Supreme Court 22 January 2022, ECLI:NL:HR:2020:80 – www.rechtspraak.nl

Introduction

Recently, the Supreme Court dealt with the following question: Can the trustee in bankruptcy recover a payment made from a bank account with a debit balance in the name of the bankrupt company after the date of bankruptcy, as that undue payment due to a violation of the principle of fixation? or the principle of equality of creditors?

In short, the Supreme Court concluded that this was not possible. Given that following the payment, there is a reduction in the assets of the bankruptcy estate (since there was already a debit balance) and also no increase in the debts of the bankruptcy estate (since the mass is not liable for the debt resulting from the payment since the mass did not benefit from the payment), the principle of fixation and article 23 of the bankruptcy law do not allow such a claim to succeed. Moreover, an inadmissible violation of the principle of equality of creditors could not be presumed, since the payment in question was not set off against the assets of the bankruptcy estate.

The relevant facts, the request and the procedure

Bleiswijk Boeketservice BV (BB) has rented premises to Coöperatie Royal Floraholland UA (RFH). On October 2, 2012, BB was declared bankrupt. The lease agreement between BB and RFH was terminated after the bankruptcy. On October 3, 2012, an amount of EUR 4,518.09 was paid to RFH by direct debit from BB’s bank account, amount due under the rental agreement. Payment was made from BB’s bank account at ABN Amro, which at the time had a negative balance.

At first instance, the trustee in bankruptcy requested that RFH be ordered to pay 4,518.09 euros. According to the bankruptcy trustee, BB no longer had the power to dispose of its assets on October 2 at 00:00, in accordance with article 23 of the bankruptcy law. The payment would therefore be made unduly, according to the trustee in bankruptcy. The district court, however, denied the request.

The Court of Appeal held otherwise, reversed the judgment of the district court and ruled in favor of the bankruptcy trustee’s claim. To this end, the Court of Appeal held (in short) that the payment had been made in breach of the principle of fixation which underlies Section 23 of the Bankruptcy Act and in breach of the principle of equal creditors.

The Supreme Court

The Supreme Court held that the justification for the principle of fixation stems from Articles 20, 23 and 24 of the Bankruptcy Act. These articles are intended to “…provide creditors with protection both against a decrease in the assets of the bankruptcy estate available for distribution among the bankruptcy creditors and against an increase in the debts of the bankruptcy estate upon following which the distribution to the creditors of the bankruptcy is reduced”.

The Supreme Court ruled that the payment to RFH was not made in violation of the principle of fixation. After all, the payment did not lead to a reduction in the assets of the estate, since the bank account already had a debit balance when the company was declared bankrupt. The payment also did not lead to an increase in the liabilities of the bankruptcy estate. It follows from Article 24 of the Bankruptcy Law that the obligations of the debtor arising after the time when the company has been declared bankrupt will not be set off against the assets of the bankruptcy estate, except insofar as the bankruptcy estate benefits. Although the payment to RFH increased BB’s debt to ABN Amro, this debt was not charged to the bankruptcy estate, which did not benefit from this payment.

With regard to a possible violation of the principle of equality of creditors, the Supreme Court ruled that, according to Article 3:277 of the Dutch Civil Code, creditors should be treated in the same way with regard to the settlement of their claims on (the proceeds of) the debtor’s assets . As already explained in the context of the principle of fixation, the payment from ABN Amro to RFH did not give rise to a claim on the bankruptcy estate. Therefore, the principle of equality of creditors is not violated.

The Supreme Court therefore quashed the judgment of the Court of Appeal and upheld the judgment of the District Court.

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