Second chance in previous competitions to 178 to LC

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In previous contests individuals to 178 to LC, You can not demand the attempted settlement of payments to grant the benefit of exemption from liability dissatisfied

 

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The Commercial Court of Pontevedra in Case 25 June 2019 (Res. No. 123/2019) It has been granted exclusion of liability dissatisfied to bankrupts. When the contest was approved by car, not the art was in force. 178 bis of the Bankruptcy Law. Bankrupts could not opt ​​for alternative settlement of payments. The General Treasury of the Social Security objected because he understood that the requirements were not met: he had not tried a settlement of payments. The court ruled understanding that They could not require them impossible to bankrupts as it intended. It was enough for bankrupts have satisfied the claims against the estate and the privileged to benefit exclusion of liability could be granted dissatisfied.

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

The 27 February 2015 Auto agreed by the insolvency of D. Calixto and Dña. Maria Ines.

The 26 February 2019 bankrupts requested Dissatisfied exemption from liability according to art. 178 bis of the Bankruptcy Law.

The insolvency administration was in favor of granting the benefit. He understood that all requirements were met and in particular:

  • The debtor was a natural person (art. 178 to 1 LC)
  • Completion of the liquidation (Arts. 152-2 and 178 to 2 LC)
  • No contest plea (Arts. 178 to 3 a) LC). Nor consisted final conviction or pendency of any legal proceedings with the debtor.
  • They had paid the claims against the estate and the privileged.

However, the General Treasury of the Social Security (TGSS) filed an opposition. He based his opposition on the following arguments:

  • He knew that he had not attempted a settlement payment.
  • Subsidiarily, public law claims were not subject to settlement of payments.

This led to the corresponding concursal incident.

The bankrupts bankruptcy administration and defense made the opposition of the TGSS. They said yes concurred legal requirements for granting the benefit in accordance with art. 178 to LC.

The 25 June 2019 the Commercial Court of Pontevedra delivered its judgment No 123/19 giving the benefit of exemption from liability dissatisfied (BEPI).

For the Court had to consider whether the reasons were justified opposition made by the TGSS.

The main question was related lack of intent of the settlement payment.

D contest. Calixto and Dña. María Inés was declared the day 27 February 2015.

El AEP (-settlement of payments-) It was introduced in the Insolvency Act under the Act 14/2013 of 27 September, which came into force on the day 1 March 2015. So it must be verified if prior to the bankruptcy declaration bankrupts could go to prior settlement of payments.

The Court cited the judgment of the Provincial Court of Barcelona # 217/2016 of 21 November why "the appellant considered he could not demand a requirement unenforceable, as he was having attempted a settlement payment... because when he presented the contest in 2014, only the natural person entrepreneur could benefit from the insolvency proceedings ".

Therefore the sentence of Barcelona resolved so that "It has to offer one particular solution to those debtors, by the time they called the contest, They had legally prohibited the alternative settlement payment. It seems unreasonable that these debtors are deprived of their right of option and are doomed to pay a substantial part of ordinary loans, much more burdensome alternative that the mere attempt a settlement that the rule does not require that you have successfully completed. (…) Ultimately, solo <<failing>> a settlement tried, if it had been possible to do so legally, debtor should be required to pay a quarter of the ordinary liability.

The judgment was closely related to the case under Litis. If the insolvent debtor had paid all the claims against the estate and the privileged, It should be decided "If you can get the benefit of exemption from liability automatically and without representation and subject to a payment plan, although it has not tried to prior settlement of payments or there met the alternative of having satisfied the 25% the bankruptcy liabilities ".

For the Court, "Regarding the payment of 25 % of ordinary loans, They were not enforceable to the extent that when the contest was declared the article was not in force 178 to LC regulating the aid should be granted exemption from liability and it also was a chance that they borrowed the settlement of payments, because in the current regulations before the declaration of insolvency of the debtor it could only be the possibility for natural person entrepreneur. (…) If the article itself 178 LC bis entered into force when the contest had already declared, the logical thing is to have only meet the payment of claims against the estate and the privileged, as this has happened in this case, as well debtors had no legal possibility of going to court settlement payment”.

So things, It fits to decide whether the exemption included public credit, because the application had fit the art. 178 to, paragraph 2, nº 4 LC.

In this regard the Commercial Court No. 50 Barcelona, in its judgment No 18/2017 said the art. 178 bis LC provided for two modes Bepi (-Dissatisfied benefit of exemption from liability-) which they are distinguished by its conditions, concession, extent and effects.

Being that, the Court concluded that the mode Bepi the case under Litis was provided for in paragraph 3.4º Art. 178 to LC. This required the payment of a certain threshold of liability. Therefore, “Dissatisfied exemption from liability shall be final and revocable and also ... reach all debts (including food and public credit)”.

The SAP bales 21 September 2016 he understood the exemption should understand in any case the public credit well "For those who meet the first system, exemption is provided all liabilities (also the public) and definitive form. While it is true that may be revoked if during the next five years it includes the existence of income, hidden assets or rights of the debtor (ex art 176 to 7LC). This system, It is designed for those with greater ability to pay because they have failed to pay part or all of the credits mentioned in point 4 ".

The Judge concluded that the legal requirements are met and because it was a debtor in good faith ex art. 178 to 3 LC. Also, by the date of the order declaring the contest, it was not appropriate to require the debtor tried the settlement of payments. It was enough to have satisfied the claims against the estate and the privileged to benefit could be granted.

In ongoing definition, the granting of the benefit of exemption from liability dissatisfied agreed in favor of debtors D. Calixto and Dña. María Inés and the opposition promoted by the General Treasury of the Social Security dismissed.

Conclusion

Those competitions declared prior to the entry into force of art. 178 bis of the Bankruptcy Act can not be deprived of the possibility to opt to Dissatisfied benefit of exemption from liability, because at the time they called the contest, the way by attempting to settlement of payments did not exist.

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