Collateral in bankruptcy: The limits of protection of secured rights

Banks typically occupy a dominant position in bankruptcy proceedings involving borrowers, a fact underscored by the competing interests of various creditor classes. The distinction between secured and unsecured creditors, established in the pre-bankruptcy phase, does not grant an automatic right of separate satisfaction upon the commencement of proceedings; rather, such rights are contingent upon statutory requirements and judicial verification. This article re-examines the legal standing of creditors in their multifaceted roles - as secured creditors, pledge creditors, and counterparties in potentially avoidable transactions. Within this framework, particular focus is placed on the scope of the avoidance of prebankruptcy transactions (actio Pauliana), inconsistent criteria for recognising recovery rights, divergent interpretations of the legal nature of guarantee, and judicial inconsistency regarding the assessment of a bank’s ‘bad faith’. The article further explores the broader economic and legal implications of non-recoverable claims and argues for legislative reform and the harmonisation of judicial practice to enhance legal certainty