Dwangakkoord ING gehonoreerd.

Nadat, als gevolg van een echtscheiding, de eigen woning noodgedwongen verkocht moest worden, bleef er een restschuld over. Het minnelijk betaalvoorstel werd geweigerd. De rechter oordeelt als volgt over het dwangakkoord:

Uitgangspunt is dat het iedere schuldeiser in beginsel vrij staat om te verlangen dat 100% van zijn vordering, vermeerderd met rente, wordt voldaan. Nu de aangeboden regeling voorziet in een lagere uitkering dan de volledige vordering, staat het belang van ING bij haar weigering vast.

De rechtbank ziet zich gesteld voor het beantwoorden van de vraag of ING in redelijkheid niet tot weigering van instemming met de schuldregeling heeft kunnen komen, in aanmerking genomen de onevenredigheid tussen het belang dat zij heeft bij uitoefening van de bevoegdheid tot weigering en het belang van verzoekster dat door de weigering wordt geschaad.

De rechtbank stelt allereerst vast dat de vordering van ING de totale schuldenlast van 100% vormt. De rechtbank stelt ook vast dat het voorstel is getoetst door een deskundige en onafhankelijke partij, te weten XXXXXXXXXX. Voorts is het voorstel naar het oordeel van de rechtbank goed en controleerbaar gedocumenteerd.

De rechtbank is van oordeel dat het voorstel het uiterste is waartoe verzoekster in staat moet worden geacht. Naar verwachting zal de uitwerking van het voorstel een gunstiger resultaat hebben voor de schuldeiser dan in de situatie dat de schuldsaneringsregeling op verzoeker van toepassing zou zijn, zoals subsidiair verzocht. Immers, de toepassing van de wettelijke schuldsaneringsregeling duurt in beginsel 36 maanden en zal aanzienlijke kosten met zich brengen, bestaande uit salaris voor de bewindvoerder en griffierecht, die in mindering komen op hetgeen verzoekster zou kunnen afdragen in de schuldsaneringsregeling. Dat betekent dat toepassing van de schuldsaneringsregeling de schuldeiser minder zou opleveren dan bij het akkoord wordt aangeboden.

Daar komt nog bij dat een eventuele bate voor de schuldeiser pas aan het einde van de schuldsaneringsregeling wordt uitgekeerd, terwijl de aangeboden regeling erin voorziet dat het aangeboden bedrag ineens en op korte termijn betaalbaar wordt gesteld. Gelet op de persoonlijke situatie van verzoekster ligt het in de rede der verwachtingen dat de afloscapaciteit gedurende een schuldsaneringsregeling lager zal uitvallen.

Ter terechtzitting hebben partijen, ondanks door de rechtbank hiertoe in gelegenheid te zijn gesteld, wederom geen overeenstemming kunnen bereiken met betrekking tot het komen tot een buitengerechtelijke betalingsregeling.
Op grond van het voorgaande komt de rechtbank dan ook tot het oordeel dat het belang van verzoekster die vanuit een stabiele situatie haar schuldenproblematiek wil oplossen, zwaarder weegt dan dat van ING, die geweigerd heeft in te stemmen.

Het verzoek om ING te bevelen in te stemmen met de schuldregeling wordt daarom toegewezen. De rechtbank stelt vast dat er thans een gedwongen schuldregeling is afgekondigd, die in de plaats komt van de vrijwillige instemming van de schuldeiser.

ING zal als de in het ongelijk gestelde partij worden veroordeeld in de kosten van de procedure.

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