Execution in sight of bankruptcy: no pauliana
Bankruptcy pauliana is a powerful tool for the trustee to reverse legal acts of the debtor performed shortly before the bankruptcy for the benefit of the joint creditors. But what applies when a payment is not made voluntarily by the debtor, but is obtained through execution? That question was at the centre of a 3 December 2025 judgment by the cantonal judge of the Limburg District Court (ECLI:NL:RBLIM:2025:12090). The judge ruled that this execution act could not be set aside by invoking the bankruptcy pauliana of Section 47 Fw. In this blog, we set out the ruling, the legal background and the meaning for practice.
The bottom line: execution after filing for bankruptcy
The present proceedings involved the situation where a creditor (also a minority shareholder and former director) had a claim against a debtor (company) that was due and payable by virtue of a default judgment. The creditor had itself filed for the debtor’s bankruptcy with the court. After the bankruptcy petition, the creditor placed an execution garnishment against the debtor’s bank. The bank then paid an amount to the bailiff, who then forwarded it to the creditor. The next day, the debtor was declared bankrupt.
The trustee in bankruptcy of the now bankrupt debtor took the position that there was a fraudulent act in administration and set aside the payment out of court. Subsequently, the trustee claimed repayment of the amount received from the creditor to the estate. The trustee based this claim on Section 47 Fw (bankruptcy pauliana on satisfaction of due debts). According to the trustee, the payment was fraudulent because the creditor knew at the time of receipt that the debtor’s bankruptcy had already been filed for; after all, he himself had filed for bankruptcy.
Section 47 Fw: the bankruptcy pauliana on satisfaction of due debts
Section 47 Fw reads as follows (freely tranlated):
“Payment by the debtor of a due debt may be set aside only if it is shown, either that he who received the payment knew that the debtor’s bankruptcy application had already been filed, and there was no suspension of the processing of that application in accordance with Articles 3d(2) and 376(2)(c) or that the payment was the result of consultation between the debtor and the creditor, the purpose of which was to favour the latter over other creditors by that payment.”
The central question in this case was whether the term “satisfaction by the debtor” in section 47 Fw also includes the situation where a debt is collected via execution – after attachment by a creditor – a form of payment over which the debtor has no control.
The trustee argued that there is no substantial distinction between a voluntary payment by the debtor and a payment obtained through enforcement measures. The subdistrict court reached a different opinion.
Court’s opinion on section 47 Fw and enforcement
Based on the legislative history of Section 47 Fw, the judge ruled that a payment obtained by execution cannot be affected by invoking Section 47 Fw, even if the executing creditor knows that the bankruptcy has already been filed (freely translated):
“There has been no satisfaction of the claim by the debtor. It follows from the legislative history that this is a crucial condition and any other interpretation would go against the intentions of the legislator. In addition, the explanatory notes to Section 47 Fw also explicitly state that this is a case unaffected by Section 47 Fw. (…) This means that the extrajudicial annulment has no effect. The claim is dismissed.”
The trustee has filed an appeal.
Significance for practice
This judgment confirms a line in (lower) case law: Amsterdam District Court 5 February 2003, ECLI:NL:RBAMS:2003:AG8282 (TvI 2003, p. 96) and Oost-Brabant District Court 25 February 2015, ECLI:NL:RBOBR:2015:1410. Both cases ruled, with different motivations, that the enforcement could not be impaired under Section 47 Fw because there was no “satisfaction by the debtor” within the meaning of the Bankruptcy Act.
For creditors who know that their debtor’s bankruptcy has been filed, in the current state of the law there may still be a last chance to get their claim paid before the bankruptcy declaration: the enforcement of a obtained enforceable title by attachment and enforcement. These enforcement measures – if the formal requirements are met – are in principle not set aside on the basis of the bankruptcy pauliana of Section 47 FW. This underlines the importance of timely litigation, obtaining an enforceable title quickly and energetic attachment and enforcement policies.
Wieringa is happy to assist
Wieringa Advocaten is your specialist in bankruptcy law, attachment and execution. Our insolvency team advises and litigates for trustees, creditors, directors and companies on bankruptcy pauliana, distraint and distribution of the estate. We are happy to assist you with practical, strategic and incisive advice.
As a result of the above, do you have any questions about bankruptcy pauliana, article 47 Fw, debt collection, seizure or enforcement of enforceable titles? Feel free to contact Wieringa Advocaten in Amsterdam. Our specialists in bankruptcy law, attachment and execution will be happy to think along with you.