On the legitimation of creditors in the classification of the bankruptcy

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Creditors have standing to appeal the bankruptcy on appeal

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In a bankruptcy, have the legitimacy to appeal the sentence handed down in the first instance, or to file an appeal to creditors who have appeared in the qualification section of the same, without being able to introduce claims that were not initially formulated by the bankruptcy administration or the Prosecutor's Office.

The Civil Chamber of the Supreme Court has reiterated its doctrine in a ruling on 21 May 2020, with No Resolution 191/2020, estimating the appeal filed by DICUFA 3, S.L. and INVERESAY 91, S.L., against the qualification of the bankruptcy of D. Florian, initially classified as fortuitous.

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

DICUFA 3, S.L., INVERESAY 91, S.L. e I.AF., S.A., as creditors in D's bankruptcy. Florian, they appeared in the contest section, requesting his guilt. The bankruptcy administrator requested that it be classified as accidental. The Prosecutor's Office requested that he plead guilty, for the assumptions established in art. 164-2-5º LC. He also requested that D be disabled.. Florian for a period of 5 years old.

Primera Instancia

The Commercial Court No. 1 Santander issued a judgment on 9 November 2016, qualifying the contest as fortuitous.

Provincial Court

By DICUFA 3, S.L., INVERESAY 91, S.L. e I.AF., S.A., appeal was presented. The Prosecutor's Office requested that the appeal be inadmissible, because he considered that DICUFA 3, S.L. and INVERESAY 91, S.L. they had no standing to appeal.

Section 4 of the Provincial Court of Cantabria passed sentence on 24 April 2017, dismissing the appeal for lack of standing to appeal DICUFA 3, S.L. and INVERESAY 91, S.L.

The Section considered that “the two appellants lack the legitimacy to file an appeal against the first instance sentence. Neither the Fiscal Ministry nor the bankruptcy administration, unique with full and autonomous standing to deduce an autonomous claim, appealed the first instance sentence. Como consecuencia de ello, appealing creditors lack standing to appeal the same, this being a direct consequence of the doctrine emanating from the Supreme Court contained in the Judgment of 3 February 2015, that qualifies as “limited and conditioned” the legitimation of the creditors of the sixth section ”.

Supreme Court

By DICUFA 3, S.L. and INVERESAY 91, S.L., It was filed appeal. The only reason alleged was “The violation of articles 168.1 and 172.bis 4 LC, in connection with articles 184.3 and 4, 193 LC, and articles 10   and 13   of the LECivil and art. 24 EC, as well as the infringement of the doctrine of the Supreme Court contained in its judgments of the SSTS of 13 September 2012 , 30 October 2012 and 3 February 2015. ”

While D. Florian and D. Gonzalo (trustee), they opposed the appeal, the Public Prosecutor's Office interested his estimate.

The Chamber upheld the appeal, bringing up three of his sentences in reference to the case, specifically the SSTS 534/2012, of 13 September, 627/2012, of 30 October 10/2015, of 3 February, in which he indicated:

"Creditors and others interested in the rating lack the legitimacy to request a certain rating, but they are recognized the possibility of intervening as adjuvants of la concrete request for qualification formulated by the bankruptcy administration and / or the prosecution, and to appeal (art. 172. To. 4 LC). And for these specific purposes the status of party is recognized. ”

He concluded that:

"Although the person creditor is entitled to appeal the judgment that it does not consider any of the claims made by the Prosecutor's Office or the bankruptcy administration, can't enter in the resource claims that had not been formulated opportunely by the bankruptcy administration or by the Fiscal Ministry on qualification section. (…) the bankruptcy administration and Ministerio Fiscal are the the only ones that can formulate motions for resolution that can be taken into account by the judge, as well as what in the appeal (and in the cassation) new questions cannot be introduced that have not formed the object of the litigation in the first instance.

(…) The creditors who filed the appeal expressly requested that the judgment of the Commercial Court be revoked and that another one be issued "in accordance with what is interested in the qualification opinion formulated by the Prosecutor's Office", whereupon they did not introduce any new claims, Instead, they requested that the claim made by the Public Prosecutor's Office be upheld..”

I consider, ultimately, that was contrary, to the legal precepts and the jurisprudence of the Supreme Court, deny legitimation to DICUFA 3, S.L. and INVERESAY 91, S.L. in the qualification section to appeal the sentence handed down in the first instance.

Conclusion

The creditors of a bankruptcy have standing to appeal the sentence handed down in the first instance, or file an appeal including, when they had appeared in the qualification section of the same, without being able to introduce claims that were not initially formulated by the bankruptcy administration or the Prosecutor's Office.

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