As the name suggests, a Security Pool for Suppliers is an association of suppliers of goods, with the common aim of pooling and enforcing their rights of retention of title against the insolvent debtor. The Supplier Pool is used to efficiently negotiate asset realization and set-off arrangements with other secured creditors (banks). In cases where goods have been delivered and sold to the insolvent company under retention-of-title arrangements, it is often difficult to attribute specific goods to individual suppliers. By pooling the suppliers’ retention-of-title rights, these evidentiary difficulties can be overcome, allowing the security interests to be enforced collectively.

Individual creditors regularly face the problem of proving their security interests in the insolvency estate. The formation of a group of creditors secured by retention of title facilitates the presentation of evidence and enables binding agreements to be reached – with the insolvency administrators and financiers who also claim security interests in the debtor’s current assets – regarding the realisation of security interests, the processing and resale of goods supplied under retention of title, the continuation and sale of the business, and when and which proceeds from the realisation of security interests are to be paid to the suppliers. The supplier pool is therefore usually the quickest and most promising way to minimise suppliers’ bad debts in the event of the customer’s insolvency. Furthermore, the pool quota is regularly higher than the insolvency quota; consequently, the proportion of their registered claims that suppliers are able to recover is higher. Last but not least, in the pool managers and their team at Florett & Falke Rechtsanwaltsgesellschaft, you have extremely experienced and competent partners at your side who are always on hand to advise you and represent your interests to the best of their ability.

Insolvency Administration / Custodian:
The insolvency administrator / custodian is entrusted with extensive rights and duties and plays a central role in the insolvency proceedings. For any enquiries regarding the insolvency proceedings and the registration of the claim in the insolvency table, please therefore contact the insolvency administrator / custodian.

We:
As the pool administrator, we initiate the supplier pool and manage it; we represent you as a supplier and assert your security interests on your behalf against the (provisional) insolvency administrator/ custodian.

Insolvency administrator:
The insolvency administrator is appointed by the competent insolvency court. Upon court order, the powers of administration and disposal over the debtor’s insolvency estate are transferred to the insolvency administrator (section 80 of the Insolvency Code (InsO)).

Custodian:
The custodian is appointed in the context of self-administered insolvency proceedings (see section 270c of the Insolvency Code (InsO)). In such insolvency proceedings, the debtor manages their own assets and is permitted to continue to do so. The debtor is monitored and supervised by the custodian in this process. The custodian is also appointed by the insolvency court and is, in turn, subject to the court’s supervision.

Yes, the claim must also be lodged with the insolvency register. The supplier must do this themselves and on their own responsibility.

In order to be eligible to participate in the supplier pool, various conditions must be met. In particular, the supplier must have delivered goods to the debtor by the relevant date which are secured by retention-of-title rights. Services rendered are not eligible for inclusion in the pool and are therefore not taken into account. We verify that these conditions are met as part of our management of the supplier pool.

Under the Pool Agreement, only receivables arising from deliveries of goods that are secured by retention-of-title rights and that were delivered to the insolvent debtor by the so-called cut-off date (the date the petition for insolvency was filed) are eligible for inclusion in the pool. Claims arising from services rendered are not eligible for inclusion in the pool and are therefore not considered. As no security interests can be agreed in respect of services, claims arising from services can only be asserted within the context of insolvency proceedings.

The use of general terms and conditions, which often set out retention-of-title clauses, requires that these have been effectively incorporated into the business relationship with the debtor and have become part of the contract. Proof is therefore required to demonstrate this. Such proof is often found on documents relating to the business relationship.

You bear no financial risk, as costs are only incurred if a successful pooling solution is found. The costs of the pooling process are covered by the proceeds from the pool and are therefore shared by the participating pool members. You will therefore not receive an invoice that you need to pay.