Insolvency proceedings are a judicial procedure aimed at facilitating a person, whether natural or legal, to settle debts with creditors in the event of insolvency
It is a figure that replaces what was formerly known as suspension of payments and bankruptcyThe insolvency law provides two ways for the debtor to pay its debts:
a) An agreement with its creditors.
b) The liquidation, assignment, or transfer of assets of the debtor’s estate.
What is the purpose of insolvency proceedings?The basic objective of insolvency proceedings is for an insolvent entity to pay its debts to its creditors. The objectives can be achieved in two ways:
a) an agreement between debtor and creditor including certain measures to make payments more accessible, reductions in amount, deferrals, and assignments.
b) at a more advanced stage, with the sale or assignment of the debtor’s assets.
c) if the above is not possible, liquidate the company.
What is the pre-insolvency proceedings?It is a phase prior to the insolvency proceeding as such, in which the debtor and the creditor try to reach an agreement to avoid the liquidation of the debtor’s assets.
This process is carried out with the judge in charge of the case, trying to negotiate and look for a way to settle the debts little by little.
In this way, for 4 months the duty to file for insolvency proceedings is suspended and some protective effects on the debtor’s assets against possible creditor claims will be produced.
The three instruments contemplated in the regulations that can be negotiated during this period are:
– Refinancing agreement.
– Out-of-court payment agreement.
– Anticipated proposal of Agreement.
What can be achieved:
a) If a refinancing agreement or an out-of-court payment agreement is reached, the debtor will be able to avoid insolvency proceedings and the liquidation of assets as long as it complies with what has been agreed.
b) If adhesions are achieved for the third party, the debtor will enter into insolvency proceedings, but if it formalizes the proposed agreement, it will shorten the judicial proceedings and will also avoid liquidation.
Who can be declared bankrupt?As a rule, all debtors are exposed to being declared in insolvency proceedings, which can affect all types of persons in a state of insolvency:
– Self-employed (traders, professionals…).
– Commercial companies (micro-enterprises, SMEs or large companies).
– Other entities with a legal personality: associations, foundations, corporations, etc.
Even if an inheritance is accepted with benefit of inventory, it can also be included in this procedure.
When is an insolvency proceeding filed?In the event of insolvency, whether of an individual or a legal entity, an insolvency proceeding may be initiated. However, this case of insolvency can be:
a) Imminent – When the debtor foresees that it will not be able to meet regular and/or timely payments to its creditors, but the situation has not yet arisen.
b) Current – When the debtor is no longer able to meet its obligations on a regular basis: there are repeated defaults, and the debtor has no money available to meet them.
Signs of insolvency:
The insolvency law considers determines that there are certain facts that make the debtor’s current insolvency situation presumable. Some of these are:
-The existence of judicial or administrative declarations of insolvency.
-Relevant foreclosures and attachments
-Tax, salary, or social security contribution payments in the last three months.
– Fraudulent conveyance
In the case of inheritances, insolvency proceedings may be filed only if they are accepted with benefit of inventory.
Who can file for insolvency proceedings?Only a natural person or legal entity with legal standing can file for insolvency proceedings. These may be:
a) The debtor itself:
– Voluntarily, if he/she is aware of his/her imminent insolvency situation.
– Obligatorily, before two months have elapsed since he knew or should have known of his current insolvency situation.
– If it is unable to comply with a pre-bankruptcy agreement it will not be able to comply with it or has already complied with it.
b) A creditor of the debtor, if the debtor is already in a state of current insolvency.
c) A partner of the debtor who has personal liability for the debts of the partnership (such as partners or limited partners), if the debtor is in a current state of insolvency.
d) The insolvency mediator, if he finds that the out-of-court payment agreement that has been attempted to be negotiated has not been successful, or that the agreed upon agreement has been annulled or has not been complied with.
However, the creditors will not be able to request the debtor’s insolvency proceedings in the event that in the last 6 months they have acquired the credits or collection rights on a singular basis, that is to say, outside the overall assets transferred, and by a business other than an inheritance or legacy.
In the case of inheritances accepted with benefit of inventory, the heirs, the creditors or the administrator of the inheritance may request the insolvency proceeding.
What can happen if the insolvency proceeding is not filed?In the event that the insolvency proceeding is not filed, a distinction must be made between the creditors and the debtor:
a) Creditors’ application:
Although they are not obliged, creditors may request the debtor to file for insolvency proceedings if the debtor is currently insolvent. If they do not do so, the consequences are as follows:
– They will have to wait until the debtor or other entitled parties request it, which will slow down the case.
– You may lose some of the advantages of acting as petitioner in the insolvency proceeding.
b) Debtor’s request:
If the debtor applies for insolvency proceedings, the consequences will depend on the state of such insolvency:
– If it is imminent, the debtor may file for bankruptcy, but is not obligated.
– If it is current, the debtor will have a period of 2 months from its knowledge to request it. Failure to do so may have detrimental consequences, for example:
– A creditor requests the insolvency proceedings, and it is more likely that an insolvency administrator will take over the management of the company.
– The insolvency proceedings are classified as guilty, giving rise to sentences and payment obligations.
However, in the event of having initiated the pre-bankruptcy agreement process, the debtor will have a period (three months, two if it is a private debtor) during which it will not have the obligation to request the bankruptcy, nor will the creditors be able to do so.
Gremicat insolvency proceedingsSince its inception, our firm has participated in more than 100 bankruptcy proceedings, reaching agreements with creditors or, if necessary, opening the liquidation phase.
Our team of experts formed by lawyers, economists, and professionals from other business sectors, offer a comprehensive service whose purpose is none other than to defend in the most favorable way the interests of our clients.
We can also advise you on issues related to the bankruptcy proceedings, such as the termination of workers’ contracts and employment regulation proceedings.
If necessary, we can also assist you in matters related to the liability of the administrators.
SERVICES WE PROVIDE TO COMPANIES
. Previous study and adaptation of the company according to the requirements of the Insolvency Law.
. Negotiation with banks, suppliers.
. Preparation of the bankruptcy.
. Feasibility plan.
. Anticipated proposal of agreement.
. Study of the insolvency situation generated for the purpose of planning possible insolvency proceedings.
. Assistance in negotiations, refinancing of debts and other extra-bankruptcy agreements.
. Preparation of anticipated creditors’ agreement. Preparation of an early liquidation plan.
Request for Voluntary Insolvency
– Preparation and filing of bankruptcy application in accordance with Law 22/03, prior business adaptation if necessary.
– Preparation of bankruptcy report (list of creditors, inventory, and others required by law).
– Preparation of Creditors’ Agreement.
– Preparation of liquidation plan of the company in case its continuity is not viable.
– Representation and defense of the insolvent party, for the purpose of defending him/her against possible insolvency incidents that may arise during the insolvency proceedings.
– Negotiations with the Insolvency Administration and creditors in order to reach specific agreements that will allow to reach a creditors’ agreement or, if necessary, to facilitate the liquidation of assets.
– Assistance to the insolvent party in the qualification piece. We defend the administrator of the company against possible proposals of guilty bankruptcy imputed by the Insolvency Administrator.
Patrimonial Advice of the Businessman in Insolvency Situation
– Analysis of the patrimonial situation of the insolvent party and its administrator for the purpose of possible liability actions against the personal assets of the latter.
– Previous legal and economic advice on insolvency matters in order to avoid incurring personal liabilities. Establishment of previous protocols of action adequate to the bankruptcy law.
If you need advice on any aspect related to an insolvency proceeding, do not hesitate to contact our firm.