Secure item not listed in the application.
September 17, 2009 | 20,00 EUR | answered by Andreas Scholz
Hello, I filed for private insolvency in January 2006 and have been in the phase of good conduct since July 2006. In June 2003, I secured my Harley Davidson with a loan of 12000 euros (security assignment letter was handed over to the lender) due to a loan that was originally intended for the start-up of my then newly founded company, but was not needed for that purpose. With the consent of the lender, it could be used for the renovation and expansion of the home I was living in at the time. At that time, I assumed I would inherit it one day, as that was always my parents' statement. Unfortunately, they passed away in 2005 + 2006 with high debts (subordination for the loan to a company owned 60% by my father) and the inheritance had to be renounced. This meant that my options to repay the loan within the originally agreed 10 years diminished. However, I was still allowed to use the secured motorcycle for certain occasions, as long as I continued to pay for insurance, taxes, and any repairs that were necessary due to my use of it.
At the time of my insolvency application, I no longer owned the motorcycle and the security had been in place for 2.5 years before the application. Is my discharge of residual debt now in danger?
I don't know what to do anymore. I have just come out of unemployment, but we are still living with financial assistance from the job center, as my wife is also unemployed. I hope 20 euros is okay for the question.
Dear advice seeker,
Your discharge of residual debt is at risk if the security provider is also a creditor in insolvency (registration of claim in the table). Based on your information, I do not assume this is the case. Therefore, there is no risk to your discharge of residual debt due to your descriptions, as the denial of RSB could only be caused by an insolvency creditor if the following conditions were met (§ 290 InsO):
1. The debtor has been finally convicted of a criminal offense under §§ 283 to 283c of the Criminal Code.
2. The debtor has intentionally or grossly negligently made false or incomplete statements about his financial circumstances in writing within the last three years before the application for the opening of insolvency proceedings or after this application, in order to obtain a loan, receive benefits from public funds, or avoid payments to public authorities.
3. In the last ten years before the application for the opening of insolvency proceedings or after this application, the debtor has been granted discharge of residual debt or denied it under § 296 or § 297.
4. In the last year before the application for the opening of insolvency proceedings or after this application, the debtor has intentionally or grossly negligently impaired the satisfaction of insolvency creditors by incurring inappropriate liabilities, squandering assets, or delaying the opening of insolvency proceedings without prospects of improving his economic situation.
5. During the insolvency proceedings, the debtor has intentionally or grossly negligently violated disclosure or cooperation obligations under this law.
6. The debtor has intentionally or grossly negligently made false or incomplete statements in the lists of his assets and income, his creditors and the claims against him to be submitted under § 305 (1) No. 3.
The creditor's application is only admissible if a ground for denial is credibly substantiated.
Based on the above numbers, you can see when the denial of RSB could be requested against you. According to your descriptions, there is no situation that would fit into any of the mentioned numbers.
In conclusion, this means for you:
1. No risk to RSB if the lender is not an insolvency creditor.
2. If he should be, there is no ground under § 290 Inso that could support a denial application.
I hope this information helps you further.
Best regards,
Andreas Scholz, Attorney
