Classification of claims in insolvency proceedings

Within insolvency proceedings, the classification of claims phase is among the most important, as creditors can more or less easily claim the amounts owed to them depending on their rank.

One of the first considerations of an insolvent company or a creditor with a claim against an insolvent debtor revolves around the amount and structure of the assets and liabilities of the company in crisis. For that, the concepts of aggregate assets (masa activa) and aggregate liabilities (masa pasiva) must be considered. The first includes the assets and liabilities of the company as well as the claims against third parties. The aggregate liabilities, on the other hand, contain the insolvent company's obligations to various creditors, which must be met according to strict criteria depending on the creditor category.

The question of whether the assets are sufficient or not leads to the continuation of the insolvent company or, if necessary, to its liquidation. The debtor's goal should be to reach an agreement with the creditors, which may consist of cancellation of more than 50% of the debt and/or deferral of the debt for a period of up to 10 years, in order to enable the continuation of the debtor's economic activity. The alternative to this is the liquidation of the company. In both scenarios, the creditors' right to satisfaction is governed by evaluated rules that divide the aggregate liabilities into two broad categories: a) claims against the estate and b) insolvency claims.

Claims against the estate are those that arose after the opening of insolvency proceedings, with the exception of wage claims of the last 30 days before the opening of proceedings, up to the amount of twice the minimum inter-professional wage. Their settlement shall have priority over all other claims. If the debtor company is unable to settle the claims against the estate, this will inevitably lead to its liquidation. Likewise, these claims include the costs of the insolvency proceedings (e.g. lawyers' fees), the costs incurred by continuing the debtor's activities until an agreement is reached or liquidation takes place, and claims under labor law that arose after the opening of proceedings, such as severance claims due to termination of the employment relationship after the opening of insolvency proceedings. The others are insolvency claims classified as priority (special or general), ordinary or subordinate, depending on their nature. Settlement of this claim takes place according to this very classification and only once all claims of a higher rank have been settled in full.

Special priority claims are those that are secured by collateral (e.g. a mortgage) and with the enforcement of which the creditor can satisfy his or her claim. General priority claims include, for example, wage claims that arose before the opening of the proceedings and claims of the tax and social security authorities and FOGASA (Spanish wage guarantee funds) up to half.

Ordinary claims are those that do not have priority. These must be filed with the insolvency administrator in due time, otherwise they will be classified as subordinated.

Einstufung der Forderungen im Insolvenzverfahren | LEX | Das deutsch-spanische Rechtsportal (ahk.es)

Autor: Axel Roth
Autor: Unai Mieza