Our restructuring practice is always bound to the goal of guiding companies out of a crisis situation into a stronger position. BMT operates in interdisciplinary working groups, which not only consist of specialists for insolvency law and restructuring. Also other legal fields of significance for successful financial restructuring are covered by the consultancy services. It is only through this interdisciplinary work that sustained and proper results based on mutual efforts are possible. In corporate refinancing, as well as in restructuring and transaction situations - within and outside insolvency proceedings - our clients obtain efficient advice from a one-stop shop.
Insolvency proceedings that are handled in a confident manner open up opportunities for all involved. BMT explores the options available, and gives you clear perspectives, with sound recommendations on what steps to take. Besides debtors who primarily contact us with requests to subject their companies to restructuring, we also assist creditors, shareholders and partners, as well as banks, during and prior to insolvency proceedings.
In order to protect the creditor collateral, we develop restructuring and liquidation concepts, taking a full service approach. Büsing Müffelmann & Theye’s advice ranges from structuring to establishing bank and supplier pools; our specialists administer creditors' rights in full in insolvency proceedings. We are also happy to assist with the work on the committee of creditors, and with company acquisitions resulting from insolvency.
BMT advises on restructuring, reorganization, refinancing and financial rehabilitation. We assist our clients in enforcing security interests, and create binding legal certainty when developing new corporate concepts. The latter may include closing down or relocating operating units, or outsourcing business activities operating at a loss.
If the procedure is organised correctly, liabilities of the insolvent company do not pass to the acquirer. That also applies to liabilities towards employees, whose employment contracts usually pass to the acquirer in such a case. BMT negotiates works agreements with employee representatives, and, if economically sensible and necessary, also redundancy programmes, on behalf of its clients.
We essentially link our expertise in restructuring practice to acknowledged expertise from the fields of company law, transactions, litigation, intangible property law, employment law, social security law and fiscal law. Büsing Müffelmann & Theye has particular experience with extrajudicial reorganisation and restructuring measures. Thus, our advice is not only sought in the case of complex reorganisations of corporate groups, but is also solicited by medium-sized businesses and their management.
Different types of insolvency proceedings
The German Insolvency Code provides for a number of different kinds of insolvency proceedings differing from one another to a varying extent. It defines the so-called "ordinary insolvency proceedings" as the normal case, however also specifies special proceedings. The latter in particular include proceedings that are personally managed (debtor’s personal management), insolvency plan proceedings or consumer insolvency (private insolvency). As per the requirements, BMT works in cross-practice teams, so that you will be given efficient advice, tailored to the particular project.
Ordinary insolvency proceedings
Should it no longer be possible to avert insolvency, we assist our clients with all matters related to filing applications and handling insolvency proceedings confidently. BMT co-operates in preparing and checking insolvency plans. We moreover advise on any matters of penal law in connection with the insolvency. Our lawyers specialising in penal law will take on your defence if necessary.
If a petition is filed in good time and particular prerequisites are fulfilled, it is possible to personally manage the insolvency proceedings, which is done under the supervision of a custodian appointed by the insolvency court. Failing the prerequisites for personal management, an insolvency administrator is appointed, and, upon filing an application, it is possible to have a say in selecting one. Büsing Müfffelmann & Theye advises you comprehensively.
Particularly great attention also needs to be devoted to the case of delay in filing for insolvency (insolvency procrastination). Should the application for insolvency be filed too late, it may lead to personal liability on the part of the managing directors or the board members of the company. The latter applies to certain liabilities of the company – e.g. arrears of wage and salary tax or VAT, as well as arrears of employee social security contributions. An early application for insolvency, however, not only prevents criminal prosecution, but also considerably increases the financial restructuring options. Scientific studies by now assume that over half of all applications for insolvency are not filed in time.
Avoidance of preferences, the right of separation of property from the insolvency estate and preferential claims
Legal transactions that are concluded only a relatively short time prior to an application for insolvency being filed are subject, under certain conditions, to the so-called insolvency contestation, i.e. may be reversed again by the insolvency administrator or the creditors. The timeframe in that respect can range from one month to 10 years prior to the application for insolvency being filed. The latter in particular concerns payments to third parties and shareholders, for instance the repayment of shareholders' loans in a crisis.
In addition, attention is to be paid to any rights to have company items separated out from the insolvency estate and also to preferential claims in company items, which third parties - in particular creditors - are entitled to assert being satisfied separately. The exercising of such rights is subject to special regulations laid down in the German Insolvency Code, which are in particular supposed to prevent creditors from competing with one another when there is a crisis.
Consumer insolvency proceedings
For the proprietor or the shareholder of an undertaking – in the event of personal liability also for the managing director of a private company limited by shares (GmbH) or the managing board of a public company limited by shares (AG) – it may, by all means, be expedient to effect a consumer insolvency. Proprietors, shareholders and managers are often liable vis-à-vis the creditors of the company with their private assets. Banks - to take just one example - usually only grant a limited liability company loans if the shareholders and/or managing directors deposit corresponding collateral securities, for instance in the form of bank guarantees or a land charge. Consumer insolvency proceedings permit the discharge of residual debt after six years. BMT advises you on all aspects of the latter, and represents your interests.