Overview of the Debt Restructuring and Debt Protection Act
Notifying the Creditors After accepting a debt restructuring petition, the court has the obligation to serve the petition, the restructuring plan and other documents enclosed thereto to the creditors stated in the restructuring plan whose claims are being petitioned for restructuring. Upon the delivery of the restructuring plan to a creditor, the court shall grant the creditor a deadline for submitting an opinion to the court, the deadline being at least two weeks but not more than four weeks after the receiving of the restructuring plan. The creditor shall submit an opinion about whether he or she agrees with the debtor’s information about his or her claim and its guarantee, with the debtor’s calculation of the debt and with the debt restructuring measures petitioned for by the debtor. If the creditor does not agree with the debt restructuring measures petitioned for by the debtor, then the creditor shall note whether he or she would agree to other debt restructuring measures. Under the Act, the court may prescribe a deadline for the debtor or the adviser for negotiating with the creditors about the debt amount or about restructuring the debt and may thus extend the deadline referred to above. If the creditor whose claim is petitioned for restructuring does not agree with the information stated by the debtor in the list of debts, then the creditor shall inform the court within the deadline prescribed by the court about the scope in which the creditor does not agree with the claim and shall submit proof of the relevant circumstances. If no such petition has been received by the prescribed deadline, then the creditor shall
be considered to agree with the claim amount. The court shall deliver the creditor’s opinion about the debt amount and about the restructuring thereof immediately to the debtor or the adviser (if one has been appointed). If the debtor (or the adviser) does not agree with the allegation stated in the petition submitted by the creditor, then he or she shall immediately submit a relevant petition to the court, together with proofs, and shall give reasons why he or she does not agree with the creditor’s petition. On the basis of the submitted allegations and proofs, the court shall decide the amount of the creditor’s main claim and collateral claim and the existence and scope of securities within one month after receiving the creditor’s opinion. If necessary, the court shall hear the debtor, the creditors concerned and the adviser before making the decision. The court may refuse to determine the value of the creditor’s claim or may determine it only partially, if the court reaches an opinion that the claim petitioned for restructuring is non-existent or that the claim value is unclear or that the lawfulness and justification of the claim cannot be reasonably assessed and thus, the claim or its scope needs to be determined outside the debt restructuring procedure in action proceedings. It can be concluded that it is in the best interest of the debtor that all the claims of the creditors against him or her are presented accurately, because under the Act the restructuring plan does not have an effect on the claims or part of the claims that have not been included in the restructuring plan.
Approving a Restructuring Plan It must be stressed that the court has the leading role in approving the restructuring plan and the debtor has the obligation to provide the court and the adviser (in case the latter is appointed) with information they need in relation with the debt restructuring procedure. If the debtor does not perform this obligation, the court may refuse to hear the debt restructuring petition. Article 24 of the Act stipulates four main alternatives for approving of the restructuring plan. Firstly, the court shall approve the debtor’s proposed restructuring plan if neither of the parties (the creditors or the debtor) has argued against it within the relevant deadline. Secondly, the court may approve a restructuring plan also if at least one half of the creditors of the claims not secured by a pledge, with their claims representing at least one half of the value of claims not secured by a pledge, have agreed to the debt restructuring and the restructuring plan does not treat the creditors who filed an objection to the restructuring significantly worse than other creditors unless there is a justified reason to have a preference numer 3 marzec 2011
a creditor. Thirdly, the court may also approve a restructuring plan with which the creditors do not agree, or with which the creditors have agreed in smaller scope than prescribed in the second alternative above, if the court has an opinion that the debt restructuring is justified considering the eligible interests and rights of the parties and the restructuring plan does not treat any creditor significantly worse than other creditors unless there is a justified reason to prefer a creditor. Upon assessing the eligible interests and rights of the parties, the court shall assess, among other factors, the scope in which it would be possible to satisfy the claim of a creditor having filed an objection in a bankruptcy procedure when compared to the amount payable to that creditor on the basis of the restructuring plan. The comparison data of a bankruptcy procedure shall be compiled on the basis of a situation of conducting the procedure, as well as of the time of initiating the debt restructuring procedure. The comparison shall also take into account the possibility of relieving a debtor who is a natural person from debts on the basis of the income level of 47