Offsetting insolvency claims and employee loans
August 25, 2009 | 30,00 EUR | answered by Andreas Scholz
My former employer had to file for bankruptcy. At the time of my employment, I had received a loan from this employer for my relocation, which was not fully repaid at the time of the bankruptcy. My bankruptcy claim for unpaid wages against my former employer is higher than the remaining debt of the loan. However, my former employer is now demanding the payment of the remaining debt.
So my question is whether I have to repay the remaining debt of the loan, even though my bankruptcy claim is higher.
Thank you for your response.
Dear inquirer,
I assume that your salary claim has arisen and become due before the insolvency proceedings were opened.
In this case, you can set off according to § 94. § 94 InsO expressly allows offsetting when the offsetting situation already existed before the opening of the proceedings. This is the case when both claims - that of the employer and that of the employee - are due to each other, § 387 BGB. To make the offsetting effective, you must declare this to the employer - or to the administrator, if they have demanded repayment, § 80 InsO - according to § 388 BGB. For evidentiary reasons, it is best to do this in writing. The part of the claim that remains after offsetting can be registered in the table, § 174 InsO.
I hope this information has been helpful to you. If you have any questions, please feel free to ask.
Sincerely,
Andreas Scholz, Attorney
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