Creditor of bankrupt Imtech in The Netherlands? This is what you can do
After the banks announced they would not be providing any new finance, Imtech filed for suspension of payments. This means that most creditors temporarily could not lay claim to Imtech property. Last Thursday, Imtech was declared bankrupt, which meant the suspension of payments was changed into a bankruptcy. Many suppliers are at risk of losing money. Dutch bankruptcy law specialist Sander Schouten discusses the options which exist to safeguard the rights of creditors as far as possible.
Imtech bankruptcy: invoking retention of title
If you are a supplier of goods, you can invoke retention of title. It is important that the contract you concluded with Imtech or the confirmation of order they sent you specified that all the goods supplied by you would remain your property until the moment that all your claims had been met. Such a retention of title can also be agreed via your general terms of delivery, but in this case it is important that your general terms of delivery are applicable to the contract concluded with Imtech and that they were made available to Imtech in the proper way.
Take advantage of the right to recovery
Many firms make use of the retention of title discussed above but are not familiar with the so-called right to recovery. The right to recovery is a relatively cheap and easy way to limit losses as far as possible in the case of bankruptcy. However, the right to recovery is subject to a shorter duration, which means it is important to act quickly. Specifically, the right to recovery must be invoked within six weeks after the purchase price has become payable or within sixty days from the date on which the goods were delivered to the buyer. So for invoking retention of title and the right to recovery alike, it is important that you take action quickly and in the proper manner. Given our years of experience in dealing with bankruptcies and bankruptcy proceedings, we can be of service to you in this matter if required.
Rental and lease contracts with Imtech
In the event that Imtech has rented goods or buildings from you, you can terminate the Dutch rental contract following the declaration of bankruptcy with a notice period of three months. During that notice period, all rent payable will be designated as liabilities of the estate, which means the rent owed will have to be paid by the trustee in The Netherlands when paying preferential and unsecured creditors. The rent relating to the period of suspension of payments will also be designated as liabilities of the estate and must also be treated as such in a subsequent bankruptcy.
Trustee may not sell rented objects
Objects rented to Imtech (this also applies to operational lease products) remain your property, which means the liquidator cannot sell them. Additionally, goods located within the rented commercial premises and belonging to the lessor are the latter’s property. As such, the liquidator may not sell them. However, in some cases this happens anyway because the liquidator is not properly aware of the ownership rights of third parties after the firm has been declared bankrupt. It is therefore important to assert your rights towards the liquidator and if necessary give notice on the rental or lease contract immediately after the declaration of bankruptcy.
Imtech subcontractors and right of lien
Subcontractors of Imtech run the risk of not being paid for work they have performed. It is therefore important to halt work in timely fashion and to ensure that no further payment arrears are incurred. It is also important to investigate whether it is possible to invoke a right of lien. If this is the case, the good belonging to the principal may not be surrendered by the contractor until the former’s claim has been met in full. A right of lien may be exercised on goods but also on a building under construction by a contractor. However, claims for right of lien are often rejected because not all the conditions have been met. I therefore recommend that in the event of a possible claim for a right of lien, you quickly obtain advice regarding the question of whether and how you can invoke this right.
Submitting your claim to the Imtech trustee
As a creditor of a bankrupt company, it is first of all important that you submit the outstanding claim to the trustee. From that moment on, the liquidator will be aware of your claim and will keep you informed about important developments in the bankruptcy proceedings. For this reason, it is important to submit your claim to the liquidator, itemized and accompanied by a number of important pieces of evidence, such as the underlying contract and/or the outstanding invoices.
Quickly inform the trustee about your security rights
This is also the moment to make known any security rights, such as the retention of title, right to recovery and right of lien referred to above, but also any pledge or right of pledge. Having done so, the trustee cannot ignore your entitlements, allowing you to limit your losses as far as possible. It goes without saying that the claim must take be submitted in the proper manner soon after the bankruptcy has been declared. If required, one of our insolvency lawyers can help you with this.