Unnotified creditor after a payment plan: the section 197 IO route

Section 197(1) IO attaches the entitlement to two facts. The claim must not have been filed at the vote on the payment plan. The insolvency creditor must also not have been notified of the opening of the insolvency proceedings. Without both conditions, the special rule does not support the claim.

It is therefore not enough that the creditor was unaware of the payment plan. The relevant notification concerns the opening of the proceedings. The opening order, service instruction, service record and address used at the time belong in the same file as the schedule of claims and the voting records.

A general late filing follows another path. A claim filed after the filing deadline is generally reviewed under section 107 IO. The article on a late insolvency claim deals with that route separately.

Where section 197(1) IO applies, the creditor is entitled to the quota payable under the payment plan. The entitlement is limited to the remaining duration of the plan. The statute also sets a minimum period: it reaches at least until three years after acceptance of the payment plan, even if the plan would otherwise end earlier.

The full quota is not fixed automatically. Section 197(1) IO additionally requires that it correspond to the debtor's income and assets. The confirmed plan, the acceptance date, the elapsed period and the current economic basis of the quota must therefore be secured for the calculation.

Section 156(4) IO remains unaffected. The special rule creates a route to the plan quota, while the other statutory effects and the actual file still require separate review.

The insolvency court makes a preliminary decision on application as to whether the quota for the claim that came to light later corresponds to the debtor's income and assets. This follows from section 197(2) IO. The application must connect the claim, payment plan, absence of notification and economic basis of the requested quota in a traceable way.

Section 156b IO describes the preliminary determination. If the existence or amount of the claim, or the shortfall on a partly secured claim, is disputed, the insolvency court may determine the probable amount on application. Section 156b(1) IO states that no appeal is available against this decision. The actual claim and later procedural position remain relevant for the final accounting.

The preliminary decision must be kept separate from the legal basis of the claim. It addresses the extent to which the quota corresponds to the debtor's economic position on the current file. It does not cure missing evidence about notification, non-filing or the payment plan acceptance date.

Section 197(3) IO limits enforcement for a creditor who did not file the claim. Enforcement may take place only to the extent that an order under subsection 2 has been made. The creditor must attach an authenticated copy of that order and confirmation of enforceability to the enforcement application.

The provision contains an alternative statement for a case in which the creditor did file the claim. For the special route addressed here, it is therefore essential that the court order actually concerns the unnotified, non-filing creditor and covers the quota and period relied upon.

If enforcement is authorised contrary to this requirement, it must be discontinued ex officio or on application without hearing the parties. Before filing, compare the order, confirmation of enforceability, payment plan and calculation of the outstanding quota.

The first page of the file should list the decisive dates in order: opening of the insolvency proceedings, attempted or absent notification, origin and knowledge of the claim, vote and acceptance of the payment plan, payments already made and the application under section 197(2) IO. This order prevents a lack of notification from being confused with later knowledge of the plan.

The confirmed payment plan, quota calculations, relevant income records and a clear asset overview support the economic limitation. The court's preliminary order and confirmation of enforceability are added when enforcement is being considered.

The payment plan overview explains the general review of quota, duration and confirmation. The section 197 IO route begins with the additional question whether this creditor was left without notification of the insolvency opening.