Nullity of actions and Second Chance Act

Ley Segunda Oportunidad

In the contest of individuals, breach of the rules governing the procedure for requesting “Dissatisfied exoneration Liabilities”, can lead to the annulment of the proceedings

 

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The bankruptcy law It is very complex. However, the legislature has chosen to provide competition for knowledge of contests individuals (nonmerchants) to the Courts of First Instance. When the procedure is violated, can lead to the nullity actions.  In the case discussed below, Section 9th Provincial Court of Valencia resolved by estimating the nullity actions, in sentence 25 July 2019 (Res. No. 1069/2019).  In this manner, debtors will be able to apply for “Liabilities exoneration benefit Dissatisfied”. 

Debtors announced their willingness to apply for such benefit in the brief start the procedure. However, the court denied it without a request it had been made by debtors in the appropriate procedural moment, within within hearing to oppose the concussion of the contest. The Audiencia Provincial found that only debtors held a rally future will at no time was reached materialize, so they were deprived of their right to claim the benefit of exemption from liability unsatisfied.

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

D. Emiliano and Dña. Nieves was called as debtors (Physical persons) a bankruptcy.

The bankruptcy mediator showed that at the appropriate procedural moment debtors would seek the benefit of exemption from liability unsatisfied.

The 1 June 2018 he issued an order of statement and conclusion consecutive contest.

By a measure of organization were forwarded to creditors to make claims to the request for exemption from liability unsatisfied. This despite the fact that debtors had not requested.

In view of this, debtors filed their request for exemption from liability unsatisfied. They claimed that there was no credit against the estate or privileged, so a payment plan was not necessary. Also, met the requirements to be considered definitive exemption debtors in good faith.

the creditor, WIZINK BANK, opposed to said request. He argued that the petition should be made by the debtor and it was legally untenable if there was no request from. He added that good faith was not met by a possible donation of debtors in favor of his son in December of the year 2017. Plus it also lacked the realization of housing which were still on the headlines and consisting mortgage. So that, there were preferential creditors and It is missing a payment plan.

Primera Instancia

The 25 September 2018 el Juzgado de Primera Instancia nº 23 Valencia, not to issue debtors,  He delivered the judgment under appeal, fully estimating the opposition filed by WIZINK BANK and denying the exemption from liability unsatisfied debtors.

The statement asserts that stated and concluded the contest in the same car and was forwarded to fi cio because they had requested in writing to the initial debtor.

Provincial Court Second Chance Act

For D. Emiliano and Dña. Nieves has filed an appeal with the main reason the annulment of the proceedings (art. 459 LEC) infringement of the rules and guarantees of the procedure. This offense generated effective helplessness and violation of fundamental rights of the art. 24.1 EC.

Alternative, in its appeal alleged that all the requirements were met in art. 178 bis and for it to be considered bona fide debtor.

BANK WIZINK opposed the appeal, indicating no criminal record consisted of debtors or qualifying contest as fortuitous. Nor it consisted existence of sufficient income to meet a payment plan.

Also, the creditor said the contest was over, giving job transfer because debtors had requested in the initial brief. Had breached Article. 178. To. 3.4º LCS because they had not paid all claims against the estate or privileged and existed proposed payment plan (art. 178 to. 3.5º) nor diligence and effort of debtors making your request.

The 25 July 2019 Section 9th of Valencia gave judgment estimating the annulment of the proceedings,  because there was a breach of procedural rules that produced defenseless debtors.

Application Unsatisfied liability exemption must be requested by the debtor can not be a trade boost by the Court. So, debtors did not apply for the benefit of exemption, but "only they announced in its initial written statement consecutive contest, at the appropriate procedural moment, previsto en el art. 178 bis.2 LC, I would ask.

Accordingly, the Court rejected the argument of the contested judgment rejecting the plea of ​​opposition from the creditor. This is because the judge a quo was considered that the initial written request, because It was only a manifestation of that future will not meet any of the requirements of the arts. 178 to LC.

Therefore, there was a job request by measure of organization by LAJ. that violated Article. 178 bis.2 and art. 176 to. 4 LC, causing clear defenseless debtors.

So, filed opposition from the creditor, it had to transfer to the debtors to make their claims (art. 178 to. 4 LC). However said hearing procedure was obviated, to be violated and the right to a hearing provided for in art. 24 EC.

In the car 1 June 2018 He declared and concluded the consecutive contest. So that It not named Bankruptcy Administration (AC), or the charge is accepted, so no AC existed that had ruled. Not that the AC had the evidence and therefore did not make submissions to the measure of organization, but, there was no trustee and this infringed the art. 178 bis.4 LC.

The first instance judgment assessed the lack of diligence and effort of debtors in making its request for exemption from liability unsatisfied. But the truth was that no such request, but a mere announcement in its request for declaration of consecutive contest. And the embroidery, in its subsequent request to the transfer of trade could not be imputed negligence debtors.

Last, the Court noted that, instance judgment mistook the requirements of good faith required in the art. 178 bis 3.1º at 4 LC with the general concept of good faith.

Hearing determined There can be no clarification and conclusion of the contest of individuals in the same car, as the art. 176 to. 4 LC, precisely because prevents the processing of the benefit of exemption from liability unsatisfied.

And he respects your Auto alluded 16 January 2019 by referring to the Auto 22 June 2017 whereby "Hasty conclusion of the contest ... deprives the appellant of the opportunity to access legal benefits of second chance".

Also, your self 17 November 2016 added that "the decision of the benefit of exemption from the unfulfilled obligation can only be prosecuted at the time of the declaration and conclusion of the contest ex art. 176 bis.4 LC for dismissal for failing to attend the legal requirements ".

There is a procedural different treatment for:

It would be requiring the applicant attesting the concurrence of all the legal requirements for exemption at the time of the request, when art. 178.2 LC sets the time of the application procedure in the intended audience in the art. 152.3 LC. This is particularly burdensome to funds that must be paid to the time of the request (…)

Concluded the contest, procedures may not be done in the art. 178.4 LC: transfer to AC and creditors for claims (…)

So, the applicant in its letter had not postulate the immediate conclusion to his statement and therefore only announced that he would ask the benefit of exemption from unsatisfied liabilities at the appropriate procedural moment ... the applicant is not listed or demonstrate the concurrence of the legal requirements for granting the benefit because it was a mere announcement ... the court also required, with previous character to solve, the requesting party attesting to the requirements ... and he has not received the request for exemption giving the benefit of creditors transfer (…)

This set of facts, lead to revocation of the conclusion of the contest and agree to the continuation of the procedure, as this guarantees application form of the benefit of exemption from liability unsatisfied, its processing in the form, hearing to all parties involved and assessment of all the existing evidence.”

Therefore, Auto referenced was applicable to the case prosecuted because the declaration was requested consecutive contest and the Court, hastily, He concluded the contest by art. 176 bis.4 LC.

In this manner, He was deprived debtors the possibility to get the benefit of the exemption from liability unsatisfied.

The Court upheld the appeal filed by debtors. The consequence of the annulment of the proceedings entailed the annulment of the contested judgment, and the feedback of the proceedings to the moment before beginning the violation of rules and procedural safeguards.

Conclusion

In the initial letter of the insolvency proceedings of natural persons, debtors can express a future willingness to seek exemption from liability unsatisfied but this announcement, It should materialize at the appropriate procedural moment.

Bankruptcy proceedings, whether or individuals, They are very complex,  so it is recommended that you advise for lawyer expert in bankruptcy law.

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