Section 135 InsO - The evil unknown of the collateral provider

The situation, which is already unpleasant in itself for a shareholder of a bankrupt company, becomes really annoying in many cases due to the insolvency administrator's right to challenge insolvency under sections  129 et spp. InsO, the situation becomes really annoying in many cases. It is particularly annoying if the shareholder has provided security for the claim of a company creditor for the repayment of a loan and is claimed by the insolvency administrator under sections 143 (3) and 135 InsO (shareholder loan) despite the fact that the company has already repaid the loan.

This is exactly the case that the Federal Supreme Court (BGH) had to decide and did so in favour of the insolvency administrator (BGH, judgement of 09.12.2021 - IX ZR 201/20), because the satisfaction of the lender from the realisation of a corporate collateral disadvantages the corporate creditors even if the lender could no longer have claimed the shareholder from the collateral at the time of the satisfaction of its claim.

The case to be decided by the BGH was based on the following facts:

The defendant was the sole shareholder and managing director of a subsequently insolvent limited liability company (GmbH). A bank granted a loan to the GmbH for which the defendant provided security in the form of a guarantee. In addition, the GmbH assigned all its claims from all existing and future trade receivables to the bank by way of security within the scope of a blanket assignment. After filing for insolvency, the bank claimed the defendant's security in the amount of the outstanding loan. In addition, the (provisional) insolvency administrator forwarded an amount of approximately EUR 35,000 from customer payments received in the meantime to the lender and demanded this amount back from the shareholder by legal action under sections 143(3) and 135 InsO.

The defendant shareholder raised the defence of limitation against this action. On appeal by the insolvency administrator, the Higher Regional Court upheld the action. The defendant's appeal to the Federal Supreme Court was unsuccessful.

In this constellation, the BGH considered the insolvency administrator to have a right of avoidance under sections 135 (2), 143 (3) sentence 1 InsO because the payment of the realisation proceeds to the bank due to the blanket assignment of the GmbH constituted a disadvantage to the creditors.

A creditor is always disadvantaged if the legal act carried out either increases the debtor's assets or reduces the assets and thus the creditor's access to the debtor's assets (in this case the GmbH) is in any case impeded or delayed and the creditors' possibilities of satisfaction would have been more favourable without the disputed act.

By entering into the guarantee, the shareholder had committed himself vis-à-vis his company to the priority satisfaction of the GmbH liability secured by him. According to section 135 (2) InsO, any security granted by a shareholder is to be considered as a loan granted by him, whereby the shareholder may only be satisfied after all other creditors. However, since in the present case the GmbH had satisfied the bank from its own funds (customer payments), the shareholder had been released from its priority satisfaction obligation vis-à-vis the company creditors in the amount of these payments.

The fact that this satisfaction of creditors was made from the GmbH's insolvency estate, thereby reducing it, also had the effect of worsening the other insolvency creditors' possibilities of satisfaction. If the shareholder had satisfied the bank first in accordance with his obligation, the insolvency estate would have been larger by the amount reimbursed from the customer payments.

However, it follows from section 135 InsO for the shareholder who has granted security (here: guarantee) for a loan repayment claim that, if the company satisfies the lender itself, it must reimburse the company for this amount advanced on its behalf.

The fact that the lender no longer had an enforceable claim against the collateral-providing shareholder at the time of satisfaction due to a limitation period for the collateral did not prevent this. Only the statute of limitations of the avoidance claim was relevant and in the present constellation this began at the earliest with the satisfaction of the bank from the corporate collateral and thus independently of the enforceability of the guarantee.

In view of this BGH decision, it is now clear that shareholders who have secured a creditor's claim must, in the event of the company's insolvency and irrespective of a possible limitation of the claim, in any case settle the creditor's claim directly or reimburse their company for the amount advanced by the latter. Otherwise, a (successful) challenge by the insolvency administrator is to be expected. Since the shareholder's collateral is entangled by operation of law, the shareholder and the company cannot enter into any contractual agreement to the contrary.