Exemption from unfulfilled liabilities per individual: Requirements

The TS understands that there is no effective and real attempt of extrajudicial settlement of payments by the individual debtor, if the only thing offered to ordinary creditors in their proposal is the termination or removal of 100% of the amount of the credits. Consequently, said debtor will not be able to obtain the benefit of the exoneration of the dissatisfied liabilities without previously proving having paid 25% of the amount of the ordinary insolvency claims.

The benefit of the exoneration of the dissatisfied liability, provided for in Article 178 bis LC, allows the individual debtor, when “it has concluded the insolvency by liquidation or by insufficiency of the active estate”, to seek from the court the forgiveness of debts.

The law establishes requirements for this benefit to be obtained: three that are common and two that are alternative.

In the case that is the subject of this judgment, the compliance with the three common requirements is not discussed:

• That the contest has not been found guilty.
• That the debtor has not been convicted by a final criminal sentence for crimes against the patrimony, the socioeconomic order, the Public Treasury, the Social Security or the rights of the workers, nor of documentary falsehood, nor are there pending criminal proceedings related to these crimes .
• That the consecutive contest has been preceded by an extrajudicial payment agreement file.

Regarding the alternative requirements, the instant debtor of the benefit in this case opted for the alternative of the 4th ordinal. According to this alternative, it is necessary that all credits against the mass and the privileged bankruptcy credits have been paid, as well as 25% of the amount of the ordinary bankruptcy credits, unless previously an “extrajudicial payment agreement” had been attempted.

This reference to the fact that “an out-of-court payment agreement was tried” generates logical doubts of interpretation, since in accordance with the 3rd ordinance, it is already foreseen that in any case the debtor has requested the out-of-court payment agreement prior to the consecutive contest. That in the ordinal 4º the scope of the payments that in any case must have been satisfied depends on whether the extrajudicial payment agreement had been tried or not seems a contradiction, since it is assumed that if this had not been the case, the requirement would not be met. previous of ordinal 3rd.

The Chamber confirms the interpretation maintained by the AP according to which, the requirement of ordinal 3 refers to that the case of extrajudicial payment agreement had been urged, that upon being frustrated, gave way to the consecutive contest, to whose conclusion due to insufficiency of assets the debtor interests the benefit of the exoneration of the dissatisfied liability. So, for the purposes of ordinal 3, it is enough with the materiality that the file of extrajudicial payment agreement had been requested and processed.

While the reference contained in the 4th ordinal requirement that the out-of-court payment agreement had been tried so that the prior payment of 25% of the ordinary bankruptcy is not necessary, it refers to the fact that there had been an effective attempt at an agreement. That is, there would have been a real proposal to the creditors, regardless of whether it was accepted by them. For there to be a real proposal for an out-of-court settlement of payments, it is necessary that ordinary creditors be offered more than the total cancellation of their credits. If, as in the present case, in practice nothing is offered, since the proposal was the extinction or removal of 100% of the credits, the TS concludes that no extrajudicial payment agreement had been attempted.

STS Room 1st of March 13, 2019. EDJ 2019/536559