Do creditors have the right to request the opening of bankruptcy proceedings for cooperatives with overdue loans?

Do creditors have the right to request the opening of bankruptcy proceedings for cooperatives with overdue loans?

Whether or not creditors have the right to request the opening of bankruptcy proceedings for cooperatives with overdue loans, it must be based on Article 5 of the 2014 Bankruptcy Law, which stipulates as follows:

Person with the right and obligation to file a request to open bankruptcy proceedings

1. Unsecured creditors and partially secured creditors have the right to file a request to open bankruptcy proceedings at the end of 03 months from the due date of the debt and the enterprise or cooperative fails to fulfill its payment obligation.

2. Employees, grassroots trade unions, and direct superior grassroots unions in places where grassroots unions have not yet been established have the right to file a request to open bankruptcy proceedings at the end of 3 months from the date of payment of salaries and other debts due to employees that the enterprise or cooperative does not fulfill its payment obligations.

3. The legal representative of an enterprise or cooperative is obliged to file a request to open bankruptcy procedures when the enterprise or cooperative becomes insolvent.

4. The owner of a private enterprise, the Chairman of the Board of Directors of a joint stock company, the Chairman of the Board of Members of a limited liability company with two or more members, the owner of a one-member limited liability company, and general partners of a partnership are obliged to file a request to open bankruptcy proceedings when the enterprise becomes insolvent.

5. A shareholder or group of shareholders owning 20% ​​or more of common shares for at least 6 consecutive months has the right to file a request to open bankruptcy proceedings when the joint stock company becomes insolvent. A shareholder or group of shareholders owning less than 20% of common shares for at least 6 consecutive months has the right to file a request to open bankruptcy proceedings when the joint stock company becomes insolvent in cases where the company’s Charter stipulates.

6. Cooperative members or legal representatives of cooperatives and members of cooperative unions have the right to file a request to open bankruptcy procedures when the cooperative or cooperative union becomes insolvent.

Thus, the creditor (whether a secured creditor or not) only has the right to request the opening of bankruptcy proceedings against the cooperative after the expiration of 3 months from the due date of the debt and the cooperative fails to fulfill its obligation to pay this debt. If this 3-month deadline has not been met, the creditor cannot request to open bankruptcy proceedings.

What basic content should a creditor submit to request the opening of bankruptcy proceedings for a cooperative?

Creditors need to submit a request to open bankruptcy procedures. The request must have the basic content in Clause 2, Article 26 of the 2014 Bankruptcy Law, specifically as follows:

– Day, month, year;

– Name of the People’s Court with jurisdiction to resolve bankruptcy;

– Name and address of the applicant;

– Name and address of the enterprise or cooperative that is required to open bankruptcy procedures;

– Due debt.

– The application must have evidence to prove the debt is due.

In case there is a proposal to appoint an asset administrator or asset management and liquidation enterprise, the petition to open bankruptcy procedures must clearly state the name and address of the asset administrator or asset management and liquidation enterprise.

What is the time limit for processing a request to open bankruptcy proceedings?

The time limit for processing a request to open bankruptcy procedures is specified in Article 32 of the 2014 Bankruptcy Law, the specific procedures are as follows:

Handling applications to open bankruptcy proceedings

1. Within 03 working days from the date of assignment, the Judge must consider the request and handle it as follows:

a) In case the request to open bankruptcy procedures is valid, the Judge notifies the applicant of the request to open bankruptcy procedures about payment of bankruptcy fees and advance of bankruptcy costs, except in cases where bankruptcy fees or advance of bankruptcy costs are not required. bankruptcy;

b) In case the petition to open bankruptcy proceedings does not have all the contents specified in Article 26, Article 27, Article 28 or Article 29 of this Law, the Judge shall notify the applicant to amend and supplement the application;

c) Transfer the petition to open bankruptcy proceedings to the competent People’s Court if it falls under the jurisdiction of the People’s Court. other;

d) Return the application to open bankruptcy proceedings.

2. Notice of processing the request to open bankruptcy procedures must be in writing and sent to the applicant and the insolvent enterprise or cooperative.

According to the above regulations, the time limit for processing a request to open bankruptcy procedures is three (03) days. After the above deadline, a request to open bankruptcy procedures will be processed as follows:

– The judge notifies the applicant requesting the opening of bankruptcy proceedings about payment of bankruptcy fees and advance payment of bankruptcy costs.

– The judge notifies the applicant to amend and supplement the application.

– Transfer a request to open bankruptcy procedures.

– Or Return the application to open bankruptcy proceedings.