What is the bankruptcy estate in consumer bankruptcy?
As indicated in one of the previous posts, upon the declaration of consumer bankruptcy, the assets of the bankrupt consumer become the bankruptcy estate, which serves to satisfy their creditors. The bankruptcy estate includes the assets belonging to the debtor on the day of the bankruptcy declaration and those acquired by the debtor during the bankruptcy proceedings.
Of course, the law provides exceptions to the above, specifying property that does not enter the bankruptcy estate, but this is not the subject of this post.
What is the liquidation of the bankruptcy estate?
As the definition of the bankruptcy estate indicates, it serves to satisfy the creditors of the bankrupt debtor. This satisfaction from the bankruptcy estate occurs from the proceeds obtained from the sale of the components included in the bankruptcy estate, a process known as the liquidation of the bankruptcy estate.
In consumer bankruptcy proceedings, the liquidation of the bankruptcy estate is carried out by the trustee. The principle is that the trustee independently chooses the method of liquidation that allows for the greatest satisfaction of creditors, taking into account the costs of liquidation.
As for the choice of the method of liquidation of real estate or those components of the bankruptcy estate whose estimated value indicated in the inventory list exceeds five times the average monthly earnings in the business sector without profit-sharing in the third quarter of the preceding year, announced by the President of the Central Statistical Office, the trustee notifies the creditors and the court through the court proceedings information system using the forms available in this system. In the notice, the trustee indicates the method of liquidation and the minimum price.
Can only the trustee liquidate components of the bankruptcy estate?
The Bankruptcy Law introduces the possibility for the trustee to authorize the bankrupt consumer to sell movable property belonging to the bankruptcy estate. The authorization granted by the trustee should be in writing, although failure to observe this form does not invalidate any sale that may have taken place.
The purpose of this solution is to relieve the trustee of the liquidation of less significant components of the bankruptcy estate or those whose disposal requires specialized knowledge possessed by the bankrupt. The use of this solution should be justified by the possibility of more efficiently conducting the bankruptcy proceedings.
Scope of authorization from the trustee for the sale of movable property by the bankrupt consumer
It is assumed that the authorization from the trustee should specify the conditions and scope of the liquidation to be carried out by the bankrupt. If the authorization includes certain movable property included in the bankruptcy estate, it should precisely define them. The trustee may also specify a minimum price and other conditions.
It is permissible to obligate the bankrupt consumer by the trustee to submit reports to the trustee on the liquidation activities carried out by the bankrupt to ensure effective supervision by the trustee over the actions of the bankrupt within the scope of the granted authorization.
Interestingly, there is an opinion that entrusting the liquidation of the bankruptcy estate to the bankrupt consumer should affect the amount of the trustee’s remuneration by reducing it to an appropriate extent.
Summary
As this post shows, there are situations in which it is not the trustee who will liquidate the bankruptcy estate, but the bankrupt directly. In the event of encountering such a situation, it is worth verifying the scope of authorization granted by the trustee to the bankrupt for the liquidation of movable property to avoid later complications regarding the validity of the concluded sales agreement.