The transparency of a debtor s assets before obtaining an enforceable title

Transcription

1 The transparency of a debtor s assets before obtaining an enforceable title AUSTRIA Third parties : Court; sometimes also bailiffs are (e.g. Kreditschutz verband 1870 ) Generally, no obligation of to disclose his situation. Only in proceedings concerning claims of minors (Sec 183 AußStrG) This obligation is based on substantive law. Court; representative of youth welfare (Sec 184 AußStrG) Assets of debtor are relevant for calculating amount of claim; In case of nonperformance of duty to inform, court can inquire employer of about employment relationship or revenue office about taxation of. Land register effected restraints; insolvency of motor vehicle, ship and aircraft railway register are to everybody; online access Inspection of insolvency register isn t possible if a certain time has run out (e.g. one year after closure of insolvency procedure); partly a legal interest is necessary Generally, no duty of third parties to provide Exception: Maintenance proceedings Employer of ; banks; revenue office; social insurance In proceedings it is duty of court to get of third parties Third parties have to give if y are relevant for claim of minor and if did not fulfil his duty of (Sec 183 AußStrG); Sec 184 IV AußStrG establishes duty of ; but re does not exist any sanction in case of malperformance of this duty (a reform is planned) public are always In proceedings, declaration has priority in relation to from third parties; 1

2 DANMARK Third parties : Court Private provide about creditably In principle, no duty to disclose assets in process; Exception if claims are sought court Court gets if y are necessary for justification of claim (e.g. in claims to calculate amount due); : no Land electronic insolvency register (decentralized, kept by courts); motor vehicle, ship and aircraft of fiscal, social and bankaccount matters are to everybody; Insolvency register is to creditor; Registers of fiscal, social and bank-account matters are only to public-creditors Assertion of legal interest is necessary; sometimes payment of a fee Before third parties do not have a duty to disclose ir ; During y are obligated to give. Court gets as part of examination of witnesses Information before beginning of is voluntary; privacy of data has to be observed; In process, debtor has to release his bank from its professional discretion (Sec 497 Rpl.); are always ; Or only as an exception (see columns on left) 2

3 FINLAND Third parties : matters are concentrated to one bailiff ( responsible bailiff ) are In cases concerning distribution of matrimonial assets or inheritance has to provide necessary Estate administrator Estate administrator can require about situation of spouse/s and estate in general; Information must be necessary for distribution of matrimonial assets or estate inventory; Court order or parties` agreement is necessary; Land Commercial Insolvency Motor vehicle, ship and aircraft Matrimonial Execution Fiscal and social are to everybody; Fiscal and social are only to Detailed application is necessary; no reason for request has to be given unless this is necessary for exercise of authority s discretion or for determining if person requesting access has right to access No legal obligation of a third party to disclose about situation of applicable applicable are always ; disclosure only under conditions described in previous columns Penal sanctions possible are 3

4 FRANCE Third parties : Huissier de justice court A debtor s duty to disclose his assets does not exist. Exception: proceedings applicable. applicable. Cadastral and mortgage : to creditor and bailiff. Access to debtor s fiscal files is excluded No special conditions. applicable applicable applicable? and may always be contacted. Private give about assets. 4

5 GERMANY Third parties : court; bailiff; land registry are (e.g. Creditreform ) No general obligation of a debtor to disclose his situation. Only in proceedings, secs. 645 ZPO et seq., in order to calculate amount due; Only income must be declared The court (and by judgment creditor) The courts use standard forms prescribed by law; Part of taking of evidence during hearing Land Commercial Insolvency Ship and aircraft register, open to everybody application and legal interest is necessary; interest in pursuing a claim is sufficient No obligation to provide. With consent of, banks may inform or banks (and ir clients: creditors) about situation of a debtor ( exchange among banks) The creditor gets from his bank. Wrong may entail liability for damages are always open for inquiries; disclosure in proceedings 5

6 GREECE Who gets Who gets informatio n: Third parties : bailiff Private company ( Theiresias ) gives about assets; but: only to certain creditors (banks; leasing and factoring companies; treasury; credit card companies) No obligation before obtaining an enforceable title. applicable before obtaining an enforceable title. applicable before obtaining an enforceabl e title. Land mortgage list of distressed goods; insolvency ship and aircraft register : to everybody On application. an applicable before obtaining an enforceable title. applicable before obtaining an enforceable title. applicable before obtaining an enforceable title. are always. 6

7 IRLAND Who gets creditor, court, Who gets informatio n: creditor, court, enforceme nt Third parties : court (but: practical responsibility for effective of court orders and judgments in Ireland lies substantially with successful party or judgment creditor) investigation agents are not uncommon It is not generally possible to compel debtor in advance to disclose about his situation; In practice, a creditor is well advised to obtain security for credit or supplies in advance applicable applicable Land Registry and Registry of Deeds (in respect of real property); Companies Registration Office (CRO); register of ships and of aircraft Registers are searchabl e by public Searches for a named individual or a company may turn out wher any real property is registered in name of that person or entity; use of CRO is possible to establish a title to shares; judgments searches are possible to establish wher any undischarged judgments are registerd against a person No general obligation of any third party to provide any to a creditor without a judgment; exceptions are possible Court asks third parties on application of any party Where assets mselves are subject-matter of proceedings, it can be possible to obtain or documents about m through pleadings or by obtaining discovery against defendant or against a non-party to proceedings (e.g. order 31, rule 12, RSC); are always searchable; Information of third parties only under named conditions 7

8 ITALY Who gets creditor, court, Who gets informatio n: creditor, court, enforceme nt Third parties : court; bailiff are and in practice very common In general debtor has no duty to disclose his assets; Exception: divorce procedures; claims Court Applicatio n of creditor is necessary ; In procedures concerning maintenan ce claims of children judge orders disclosure ex officio. : official inquiry about debtor s revenues. Land register (local ); list of effected s; insolvency motor vehicle register of current accounts, bank depots and cheques (bank register) are to everybody ; bank register is only to court Access to taxation lists only if public outstanding debts are enforced; access to bank only if fiscal or penal matters are at issue (not in civil cases) In general third parties have no duty to give on debtor s assets; but exceptions are possible (e.g. divorce proceedings) court In divorce procedures judge can summon bank to produce about assets of spouses; In general judge orders disclosure on application of creditor; : official inquiry about revenues are always ; Taxation lists and bank are under named conditions; Information is only in named special cases; in divorce procedures no priority of one of sources of can be stated 8

9 LUXEMBURG Information from Third parties : bailiff The debtor has no duty to disclose his assets Exception: proceedings. applicable. applicable. Land mortgage motor vehicle register are to everybody; motor vehicle register is only to creditor Generally a written application is necessary; register is by phone and by internet Generally a third party must not disclose any about assets; but: Spouses must disclose revenue if he/she doesn t contribute to conjugal costs; Court, creditor Any disclosure of by a third person requires a judicial order If creditor can get sufficient from, a disclosure of assets by third parties is not necessary. are not Debtor or third parties must disclose revenues to prevent overindebtedness; Social security must indicate employer; Employer must disclose salary 9

10 NETHER- LANDS Third parties : bailiff are (Bureau of Krediet Registratie); but: access only to and official which are allowed to issue credits applicable applicable. applicable. land companies insolvency ship and airplane ; matrimonial property register ; to everybody No special conditions are required. Employer Court; (bailiff) Employer provides only with consent of debtor No sanctions are applicable are always ; Informatio n of third parties is only on quoted conditions 10

11 PORTUGAL Third parties : bailiff, court applicable. applicable. applicable. Land Commercial Insolvency : to everybody No special conditions applicable. applicable. applicable. are always accessible are not ; but: office of centralisation of credit risks provides to banks about persons who want to get a credit Motor vehicle, ship and aircraft 11

12 SPAIN Third parties : court Normally, Inquiries are conducted by (e.g. ASNEF; RAI) No disclosure before beginning of. applicable applicable Land register (local and central ); motor vehicle register of movable goods ; can be accessed online The use of a special form is prescribed; apart from this formal requirement no special conditions No duty of third parties to give before beginning of creditor Creditor can try to get from third parties; court does not support him until he has obtained an enforceable title; problem: about debtor s situation may be protected by secrecy of banks and revenue offices are always ; informatio n of third parties is possible but on a voluntary basis 12

13 SWEDEN Third parties : national authority (KFM) which is independent from courts credit companies are (e.g. Intrum- Justitia and Upplysningscentralen, UC) Court; creditor Information is given in a document or at interrogation; Debtor has to confirm truth of provided ; application of creditor is necessary creditor may be summoned to be present at interrogation with : fines, detention of debtor. Land motor vehicle, shipping and aircraft matrimonial securities trottinggallop and horse accounting system for authorities (a reg. of public claims); reg. for injunction to pay and for assistance; tax reg.; reg. of mortgage on a company s assets are to everybody; The accounting system for enf. auth., reg. for injunction to pay and for enf. ass. and tax register are only to authorities; to certain (acc. sys. for enf. auth.; reg. for inj. to pay and for enf. ass.; tax reg.; comp. reg.; traffic reg.; land reg.; reg. of mortgage on a comp. assets) online access is In most cases a written inquiry is necessary; Inquiries about ships and gallop horses can be made by telephone authority requested has to be of importance for assessment (e.g. about dealings or about his distrainable property); sanctions: fines, imprisonment of third party are always ; No priority of one of or informatio n sources can be stated 13

14 UK - England / Wales Disclosure by debtor Information from Third parties creditor, court, In support of freezing orders, court can make ancillary orders reg. a) disclosure of documents + answers to request for (CPR r (1) (g) ) and b) cross examination on affidavit of debtor Court, creditor for freezing order must be met Simple suspicion does not suffice; creditor must have some evidence suggesting that additional assets are hidden No real risk of criminal charge (privilege against self-incrimination); [exceptions e.g. regarding intellectual property] flexible sanctions (CPR r (2) (c); et seq.): Striking out of a defence; bearing of costs; exclusion of evidence; diverse, 1) cf. synopsis address of debtor 2) Land register: by internet regarding all properties registered titles (fee: 2,- / title); however it does not directly reveal which properties a particular person owns 3) Bankruptcy Ship register, Airplane register access Access for most on single request sometimes, a legal interest must be shown Information to be obtained from Vehicle License Agency must be sufficiently linked to vehicle Banks etc are not allowed to disclose without consent of debtor or court order (duty of confidentiality) Court can order production of documents from any 3 rd party during trial. Ancillary order: bank can be ordered to disclose debtors accounts Court, creditor Documents to be produced must be likely to support case of applicant / affect case case of anor party and disclosure must be necessary in order to dispose fairly of claim or costs (discretion of court) Add. test: no harm to public interests Ancillary order: creditor must undertake not to use obtained than in course of proceedings General rules of proportionality and reasonableness (CPR Part J 48.1 and CPR 48.6) apply 14

15 UK - Scotland Third parties No nonpublic data sources open to creditors No duty of debtor to disclose assets; under debate wher to introduce such a duty N.A. N.A. Land Reg., Companies Reg., Bankruptcy Reg., Airplane Reg., Ship Reg access On application (Justified interest in access needed??) Arrestee (bank) can give but is not obliged to do so N.A. N.A. are always accessible 15