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Are you no longer able to pay your debts? Then you can apply for debt restructuring. There are 2 types of debt restructuring:
- voluntary debt restructuring
- statutory debt restructuring under the Natural Persons Debt Restructuring Act (Wet schuldsanering natuurlijke personen, Wsnp)
You start with the voluntary procedure. If that fails, you ask the court to admit you to the statutory Wsnp debt restructuring procedure. If your inability to pay your debts is temporary, you can apply for suspension of payment.
Voluntary debt restructuring
When you appeal for voluntary debt restructuring, a debt counsellor will help you. Debt counsellors are appointed through your municipality (in Dutch), social services or a specialist company. They help you find a solution for repaying your debts with your creditor or creditors. This is called a voluntary payment arrangement. You apply for this to your municipality.
Voluntary payment arrangement
When you enter the voluntary payment arrangement, you start by drawing up a plan with your debt counsellor. He or she will calculate how much you can repay per month. After that, the debt counsellor will propose a monthly repayment to your creditor or creditors (the people or companies you still have to pay).
Your creditors have to agree to a voluntary payment arrangement. Have you done your utmost to pay back as much as possible within 36 months? Then the rest of the debt will be cancelled.
Do 1 or more creditors not agree to a voluntary payment agreement? And is their refusal to agree unreasonable? You or your Wsnp administrator can request the court for a compulsory settlement. At that time you also apply for admission to the statutory debt restructuring Wnsp. If the judge imposes the compulsory settlement, you request for admission to the Wsnp expires. Does the judge deny the compulsory settlement? In that case the judge will consider your request to enter the Wsnp procedure.
Statutory debt restructuring
Does the voluntary debt restructuring fail? You or your Wsnp administrator can ask the court in your place of residence for a statutory debt restructuring arrangement under the Natural Persons Debt Restructuring Act (admission to the Wsnp). The Wsnp is a legal debt restructuring arrangement. You can also be admitted into this procedure if your creditor files for your bankruptcy.
Conditions of the Natural Persons Debt Restructuring Act (Wsnp)
- You can no longer pay your debts.
- You have a statement from your municipality that voluntary debt restructuring failed.
- You have not made use of Wsnp in the past 10 years.
- You have not run up debts deliberately in the past 5 years, for example through fines, fraud, or reckless spending.
- None of your debts was incurred through crime.
- You comply with the Wsnp requirements.
- You try to earn as much as possible to repay your creditors.
- If you do not have adequate knowledge of the Dutch language, you must make sure to have help in translating all correspondence.
Please note: when you appeal to the Wnsp, you will almost certainly have to end your business. Only in exceptional cases you are allowed to continue your business. For instance if that would be more advantageous and there are very little risks.
Debt restructuring plan
Does the court approve your application for statutory debt restructuring? Then it will draw up a plan to reschedule your debts. This will set out the repayment amount and the length of time that the process will cover. This is usually 3 to 5 years.
The court will appoint an administrator. You must inform the administrator about everything that might be relevant for your situation. Often the administrator will end your business and sell your company's assets. The administrator will calculate how much money you will live on. All income that exceeds this sum will go into an estate account. He or she uses this account to repay your creditors, and his or her own fee.
The administrator will check whether you meet your obligations. If you fail to conform to the Wnsp obligations, the administrator, the bankruptcy judge, or the creditor can ask the court to suspend the arrangement. The judge can then pronounce bankruptcy.
Have you met all statutory debt restructuring obligations? At the end of the agreed upon period the judge will grant you a clean slate. This means you will not have to repay the remaining debt.
Private agreement (WHOA)
As an entrepreneur in financial difficulties, you may enter into a private agreement with creditors to restructure problematic debts. The court can approve this agreement (homologation). This is a compulsory agreement under the Court Approval of a Private Composition (Prevention of Insolvency) Act (Wet homologatie onderhands akkoord in faillissement, WHOA). You may prepare and determine the content of the agreement yourself.
Creditors or shareholders who do not agree can then still be bound by the agreement. Therefore, the term 'compulsory agreement' is also used. You can also use this compulsory agreement for a relaunch of (part) of your business. If the majority of creditors supports the relaunch, then a single or a minority of creditors or shareholders cannot prevent this restart.
Cross-border cases in English
If you are involved in a cross-border solvency case, you can turn to the Netherlands Commercial Court. Cases can be heard by the Netherlands Commercial Court, in the following cases, if:
- the proceedings fall under the jurisdiction of the Amsterdam District Court or Amsterdam Court of Appeal;
- the parties have expressly agreed in writing that proceedings will be in English before the NCC (the 'NCC agreement');
- the action is a civil or commercial matter within the parties’ autonomy;
- the matter concerns an international dispute.