NETHERLANDS Law and Practice Contributed by: Coco van Zuiden, Marijn Bodelier, Sabine Schoute and Simone Wijngaard, Greenberg Traurig, LLP
estate, unless it has been involved in causing the pollution. However, the position of the mort - gagee is no different from any other third party involved. This could change, however, if the mortgagee becomes the property owner. 3.9 Effects of a Borrower Becoming Insolvent Generally speaking, Dutch law security interest created in favour of a mortgagee/pledgee can - not be made void in the case of insolvency of the borrower. There are, however, certain things to consider in case a borrower becomes insolvent. Impact on Security Rights Generally speaking, under Dutch law, assets over which a Dutch law or non-Dutch law secu - rity right is purported to be created, which are acquired or come into existence after a pledgor has been granted a suspension of payments or has been declared bankrupt, will not become subject to such security right. With respect to bank accounts, this means that payments that are booked in a pledged account after the pledgor has been granted a suspension of payments or has been declared bankrupt, will not be subject to the security right created by the relevant security agreement and will there - fore become part of the bankrupt estate of such pledgor. A pledgee may not enforce a security right over an account in respect of payments that are booked in such pledged account after the pledgee (with whom the pledged account is maintained) should reasonably have been aware that the pledgor would be granted a suspension of payments or be declared bankrupt. With respect to lease payments, any payments to be made by the lessee under a lease which become due after the pledgor has been granted a suspension of payments or has been declared
bankrupt, will not be subject to the security right created by the relevant security agreement and will become part of the bankrupt estate of such pledgor. With respect to a right of pledge over receiva - bles in general, a pledgee may only collect a receivable subject to a Dutch law right of pledge after the debtor has been notified of such right of pledge. Until notification, the right to collect remains with the pledgor. Payments made by a debtor to the pledgor, or its bankruptcy trus - tee, prior to notification but after bankruptcy or suspension of payments of the pledgor will form part of the bankruptcy estate. The pledgee has a priority right with respect to the proceeds of such payments but will not be paid until the bankruptcy estate is distributed and will thus have to share in the bankruptcy costs. Fraudulent Conveyance The bankruptcy trustee may annul legal acts performed by the insolvent borrower based on fraudulent conveyance (actio pauliana) if certain conditions have been met. A distinction is made between voluntarily performed legal acts and As said, a mortgagee and a pledgee may in prin - ciple enforce their security rights as if there were no bankruptcy or suspension of payments. A security right gives the lender priority over other creditors; the lender has a priority claim over the proceeds resulting from enforcement of its secu - rity (subject to limited exceptions). If the bor - rower has been declared bankrupt, then this can even be done without the bankruptcy trustee’s co-operation. A court may nonetheless order a two-month general stay, the “cooling down period” (which can be extended by an additional non-voluntarily performed legal acts. Cooling-Down Period/Deadline for Enforcement
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