Second opportunity, payment plan and economic capacity of the debtor

Ley Segunda Oportunidad

For the benefit of exemption from unsatisfied liabilities of the Second Chance Act, the payment schedule must conform to the economic capacity of the debtor

 

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The proposed payment plan as a condition for exemption from liability dissatisfied must have a real economic content. In order to understand formulated the requirement of art. 178 to 3, nº3 LC, and therefore, can operate exemption, it is necessary to relate that offered by the debtor and its economic capacity: They can not be required “impossible”.

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

Declared consecutive contest Dña. Silvia and the liquidation of the active mass, It was requested 8 May 2019 by the insolvency administrator the conclusion of the contest under art. 152 LC.

The 24 May 2019 Ms.. Silvia he requested Dissatisfied benefit of exemption from liability previsto en el art. 178 to LC.

The 5 June 2019, Insolvency Administration expressed its agreement with the request. He said the condition should be with profit nature provisional and subject to compliance with a payment plan.

The 7 June 2019, two of the creditors, they formulated Demand for bankruptcy incident in contesting the application for the grant of the benefit.

Incidental allegations of the plaintiffs were:

– The court lacked subject-matter jurisdiction. The insolvent had alternated provided no natural person businesswoman with entrepreneur natural person for the purpose of filing the application contest in a row.

– I could not be regarded as attempted settlement of payments. No knew that they had taken all legally required communications. Specifically, the claimants had not received any notification to attend the discussion sessions. Nor they were notified proposed payment plan.

– The debtor had failed to obligations collaboration Art. 42 LC, He is having concealed income tenure, property or rights.

– The proposed payment plan submitted in extrajudicial phase incurred fraud law. as, its content only committed payment 1% the existing liability. Thereby, It could not be attempted by material and effectively phase settlement.

The 12 June 2019 the debtor filed, spontaneously, proposed payment plan.

The 5 September 2019 the Commercial Court No. 3 Valencia gave judgment (Rec. 594/2019) provisionally granting the Dissatisfied benefit of exemption from liability.

The judge recalled the art. 178 LC bis, foresaw the possibility provided is entered into three inescapable requirements:

  1. The debtor was a natural person
  2. Conclusion contest liquidation or failure of the active mass
  3. Good faith of the debtor

So, so that the debtor was considered good faith should attend the requirements of Art. 178 to 3 LC, numbers 1, 2º, 3º y 4º.

If the requirements are not met number 4th, It could also be considered as the debtor in good faith if it meets the requirements of the number 5 and present the plan payments art. 178 to 6 LC.

In the case he prosecuted the debtor filed spontaneously payment plan without being required to effect and before authorization to use.

So, was insolvent natural person and for consideration as a debtor in good faith, the judge highlighted as relevant notes:

– He knew that he had not been convicted of any crime that would determine LC rejection of the exemption.

– The contest had been called fortuitous.

– The debtor had tried the settlement of payments.

– The debtor did not meet the requirement of art. 178 to 3. 4º, that was outstanding special privileged credit recognized in the contest. However, He had agreed to submit to the content of a payment plan that had been formulated and not discussed.

Therefore, the judge concluded that the requirements were met art. 178 to 3 LC, number 1, 2º, 3Th and 5th to consider the debtor as good faith. Therefore, I could get a remission of their unmet debts subject to the fulfillment of the payment plan.

Jurisprudential doctrine was uniform to distinguish the list of possible itineraries for exemption on numbers 4 and 5 of the third paragraph of Art. 178 bis LC with the requirement of number 3, namely, the required holding a settlement of payments can only be avoided with enhanced payment number 4th (no exemption itinerary chosen by the debtor).

Could only reach the exoneration benefit through the implementation of a payment plan when they had previously entered into a settlement payment.

Since the unification of criteria of year 2016 access to the itinerary and exoneration formulate a payment plan allowed when it had not been possible to come to the stage of settlement.

Incidental actors did not receive notice or summons for holding the phase of settlement payments, He is questioning whether to have for attempted.

The Judge determined the lack of notification and location of certain creditors did not prevent attempted not have the agreement. It was only an impediment to challenge the content of the agreement reached in his absence (art. 239.1 LC).

Promoters creditors made no challenge to the incident report accompanied by the insolvency administrator. Por consiguiente,  qualification as subordinates of their claims was ratified by application of art. 237.1 LC. The contents of the report presented initially became final in the contest.

Moreover, the actors argued that the settlement could not be tried because of the debtor made a proposal that only committed to the payment of 1% ordinary and subordinated loan. It could not be attempted by material and effectively this phase. This also determined the inability to access the benefit of exemption by complying with a payment plan.

The judge cited the recent STS, 1ª, of 13 February 2019, considers that the requirement of the third ordinal Art. 178 to 3 LC should be interpreted. Specifically, in the sense of a attempt materials and effective agreement”:  The proposal offered to creditors would have had a real economic content, although it had not been accepted by them.

Hence, during the settlement, the debtor should offer "more than the total cancellation of appropriations.

But considering the situation of the debtor (“who has little or nothing, little or nothing to offer "),  can not frustrate access to the benefit of exemption to whom a proposed resolution of all artificial point is in a situation of economic vulnerability or conminarle to suggest the bankruptcy mediator.

Own creditors were called upon to make any offer and commitment reflected in a proposal to amend the initially formulated (art. 237.2 LC).

In the case prosecuted, It turned out that the debtor did make a material offering. At least, including the 1% the amount of ordinary and subordinated loans.

So, that "more than forgiveness " requiring the doctrine should not be related to the amount of overdue loans, as pointed actors, but it had to relate to the economic capacity of the offeror and insolvent.

The judge said that if concurred the requirements of Art. 178 to LC, two different types of effects were anticipated:

– If the requirements were met art. 178 to 3 LC, nº 1, 2º, 3º y 4º: It reached exemption total liabilities not satisfied with the active mass. And that by failing to establish the LC limitation on its scope.

– If the requirements were met art. 178 to 3 LC, nº 1, 2º, 3º y 5 °: The exemption was provisional and it reached ordinary and subordinated loans. And that although they had not been communicated. Except for public law and food, as well as credits with special privilege.

In the latter case, debts not remain exonerated, They had to be met within five years through a payment plan.

And, after this period, the debtor should ask the bankruptcy judge definitive revocation statement, as well as the final exemption from liability dissatisfied with a payment plan, provided that the debtor had intended, to compliance, at least half of the income received.

Therefore, the judge concluded that the debtor meets the requirements of art. 178 to 3 LC nº 1º, 2º, 3º y 5 °.

The judge recognized Dña. Silvia's Dissatisfied benefit of exemption from liability. The benefit of exemption was provisional in the sense of art. 178 to 3.5º y 6 LC, resulting approved the payment plan proposed by the debtor.

Conclusion

The proposed payment plan by the debtor during the court phase must be analyzed in relation to their economic capacity.

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