Beneficio de exoneración del pasivo insatisfecho y crédito público

Ley Segunda Oportunidad

For Supreme Court, approval of the payment plan by the court for exemption from liability dissatisfied, It does not require subsequent ratification by the public administration


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Possible exemption from unsatisfied liabilities in a bankruptcy proceeding if public credit is included in the payment plan and judicially approved. No subsequent ratification is required by the public creditor.

The Civil Chamber of the Supreme Court, He has clarified this question raised relative to the commonly known “Second Chance Act” in its judgment No 381/2019 of 2 July, resolved in favor of the insolvent debtor. In this procedure, He pleaded to an individual in bankruptcy. The insolvent dissatisfied requested exemption from liability for insufficient assets. The State Agency for Public Administration opposed the exemption by a demand for bankruptcy incident. Alleged lack of requirements that apply the exemption allowed public credit.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

In 2010 D. Edmundo was declared in bankruptcy. the abbreviated procedure was followed.

In the list of creditors had recognized the following credits:

  • credit with special privilege of art. 90.1 LC 465,63 euros;
  • a loan with general privilege of art. 90.2.º 1.926,81 euros;
  • an ordinary credit 3.672,86 euros and,
  • a subordinated loan 88,20 euros

In January 2015, after making its goods and patrimonial rights, the receivers interested termination procedure insufficient active.

The 9 April 2015, the insolvent debtor asked the Dissatisfied exemption from liability.

Debt certification of AEAT ((State Agency for Public Administration)of 10 April 2015 He showed that was outstanding as a credit against the mass 821,41 euros and a privileged credit 1.926,81 euros.

AEAT filed Demand for bankruptcy incident against D. Edmond requesting the denial of the benefit of exemption from liability dissatisfied. He argued that the exemption request contained an option by the ordinal 4th or 5th Art. 178 to. 3 of the Bankruptcy Act (LC). Also, no documentary proof of payment of the secured claims was accompanied and against the mass.

D. Edmundo, to answer the demand it was partially paved. He presented a proposal for payment of claims against the estate and privileged.

Primera Instancia

The 2 December 2015, the Commercial Court No.. 1 Palma de Mallorca gave judgment dismissing the lawsuit at the request of the State Attorney representing the AEAT.

The court admitted altering the application for exemption from liability and appreciated that this legal requirements of paragraph 5 of the art were fulfilled. 178 bis.3 LC.

He agreed dissatisfied exemption from liability. And, He accepted that the claims against the estate and privileged unaffected by the exemption were satisfied according to payment plan.

Provincial Court

The first instance judgment was appealed against by the AEAT.

The 21 September 2016, 5th Section of the Provincial Court of Palma de Mallorca passed a sentence dismissing the appeal filed by the State Bar. Hearing ratified flexible approach the judge, that allowed (In response to demand) change the terms of the request for exemption from liability dissatisfied. He understood that the debtor was in good faith and that the will of payments showed a real willingness to comply.

On the extension of the exemption to public credit, the Court reasoned as follows: “The standard establishes two systems of exemption. The final exemption if the debtor in good faith meets the requirements of Art. 178 4º the LC bis. And the temporary exemption if they do not comply but is subject to a payment plan. For those who meet the first system, It is planned exemption of all liabilities (also the public) and definitively ... This system is designed for those with greater ability to pay because they have been able to pay some or all credits mentioned in point 4. It would be illogical for those who have less ability to pay, the 5th paragraph (they have to undergo a payment plan)... they are not exempted from the public credit in legally established conditions. At incardinables debtors in paragraph 4 -those who do not require payment plan- if they are exonerated from the public credit”.

He added that the payment plan had to reflect "how they will pay no exonerables credits in those five years, respecting the rules of competition.”

the necessary unity of the bankruptcy process ... justifies the inclusion of such credits in the payment plan ".

Supreme Court

The State Attorney, representing the AEAT I appealed. The respondent did not appear.

The Supreme Court, in Case 2 July 2019, with No.. resolution 381/2019 He dismissed the AEAT.

The grounds of appeal were dismissed:

1° Infringement of art. 178to LC.

The plea alleging that the judgment violated paragraph 3 Art. 178 to LC. This article demanded good faith of the insolvent debtor to apply the benefit of exemption from liability dissatisfied.

The appellant submitted that the debtor lacked good faith because "In the first moment, It based solely his request for the grant of the benefit of exemption from liability dissatisfied (…) in concurrence number 4 of article. 178 to 3 LC…He claims to have fully satisfied both claims against the estate and the privileged credits ...; and before the opposition of the AEAT, recognizes the credits had outstanding.

The Chamber rejected the first plea.

For exemption from liability could be recognized were necessary a series of requirements contained in section 3 Art. 178 LC.El provision stated that "Only the request for exemption from liability dissatisfied debtors in good faith will be admitted ". Acontinuación, He explained was meant by good faith by linking this concept to some general requirements contained in ordinals 1, 2º and 3rd paragraph 3 Art. 178 to LC:

  • The contest should not have been classified as culpable;
  • The insolvent debtor should not have been convicted by final judgment for certain economic crimes and;
  • It should have gone to the procedure of settlement of payments in advance to the opening of the competition.

Also, according to the ordinal 4th immediate exemption or exemption under five years of the ordinal 5th, it had to meet other own requirements of each option.

Therefore, denouncing the lack of good faith required by art. 178 to 3 LC was due gird compliance with these requirements. And It not in the original application had omitted the existence of a claim against the estate which was later admitted.

2° Infringement of art. 178 to. 3.4º y 5º LC.

Denounced the appellant that the choice of route of exoneration which opt, must be express and unchangeable. So, He argued that the appeal decision would have violated this legal rule by allowing the debtor change, In response to demand, exemption from 4th ordinal by ordinal 5th.

The Chamber dismissed the second plea. He concluded that "Article. 178 bis LC does not establish a rigid procedure for requesting and obtaining exemption from liability, presupposing the impossibility of varying the initial option for one of the two legal alternatives, the ordinal 4th or 5 ".

Therefore,there was no objection to the debtor formally opt for the alternative of ordinal 5th. So good, provided the legal guarantees that would allow the contradiction on compliance with the own requirements were met of such alternative. And, no record of such guarantees had been violated.

3° Infringement of art. 178 to. 6 LC.

It was alleged that Article. 6 LC It precluded the payment plan may agree to rescheduling the public credit.

This legal norm, según el recurrente, “the bankruptcy judge closed the imposition of limits to the public creditor for the recovery of claims that can not be exonerated ".

The Chamber also dismissed the third plea and interpreted the rules governing the alternative of paragraph 5 of the art. 178.3 to LC.

The alternative was 5th ordinal "one that allows the total exemption from the credits after five years. This pathway must be integrated with other rules dispersed outside the section 3. So good, the ordinal was on the 4th immediate exoneration and it contained own requirements.

To go the route of paragraph 5 of the art. 178 to LC, Two types of requirements are demanded.

First, own:

  • The debtor must have breached its obligations collaborative art. 42 LC
  • Is not to have obtained the benefit of exemption within ten years earlier
  • In the four years preceding the declaration of insolvency, the debtor not having rejected a job offer adequate capacity
  • The debtor must have expressly agreed to the publication of the profit in the Public Registry Bankruptcy.


  • the debtor is required to submit the payment schedule provided for in Article. 178.6 to LC
  • Con carácter previo, determine which credits would be affected by the exemption.

For the High Court, full five-year exemption was contingent 5th ordinal (like the ordinal 4th) payment of claims against the estate and special privilege. And he added, "Although in this case by a payment plan that allows fractionation and deferral over five years. Notwithstanding that in cases where compliance with this partial reimbursement should be found impossible, the judge may reduce it to partially accommodate what could objectively satisfy the debtor during the legal period of five years ... With this interpretation is not delayed much public credit, because accordance with the provisions of art. 91.4.º LC, the 50%, discounted or have another preference is subordinated, general consideration is privileged, and therefore remain outside the exemption.”

Given the scope of the exemption, It had to meet rules on the payment plan which necessarily it had to undergo the debtor to recognize the benefit. This requirement had been regulated in art. 178.6 to LC.

This standard contains a contradiction, which it is what led to the third plea. On the one hand, a plan was expected to ensure the payment of claims against the estate and privileged in five years. This plan must be approved by the court. On the other hand, of it is reporting the debtor to administrative mechanisms for the public creditor fractionate and will defer payment of their claims. As the Board noted, “approved the payment plan, it is impossible not effective to further ratification of one of the creditors, in this case the creditor public. Those administrative mechanisms for forgiveness and deferment are meaningless in a situation of bankruptcy ".

This contradiction became ineffective the objective pursued by Article. 178 to LC. So that, the Chamber determined, “It has to subsume the intended protection of public credit at court approval. The judge, previously, You should hear parties in person (Also the public creditor) over the objections presented by the payment plan, and attend only those objective reasons for disapproval of the plan ".


In insolvency proceedings in which the benefit of exemption from liability dissatisfied requested and there is public credit, it should be included in the payment plan and be approved by the court. You can not leave their effectiveness at a later ratification public creditor.

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