In this days, the situation in which an entrepreneur, whether large or small, finds himself with one of his clients has been declared bankrupt, is not uncommon, and in many cases, said client owes him certain credits.
Given this situation, it should be clear which would be the main steps to follow and what we should do so that our debt can be paid by the debtor in bankruptcy.
According to the spanish Bankruptcy Law, any person, both physical and legal, who is in a state of insolvency, that is, as indicated in the aforementioned regulations, when “he cannot regularly fulfill his enforceable obligations”, may request his declaration of insolvency, in order to initiate the appropriate procedural procedures for the payment of the debts that it has with its creditors, either by signing an agreement that establishes a form of payment or by liquidating its assets.
The debtor’s creditors could also request their bankruptcy declaration, as long as the premises necessary for it are fulfilled.
Well, once the insolvency of the insolvent debtor has been requested and if the Judge understands that all the legal requirements are met, he will proceed to issue the debtor’s declaration of insolvency, being that, in said order, among others pronouncement, a Bankruptcy Administration will be appointed.
The Bankruptcy Administration is the one that will be in charge, among other tasks, of determining what are the assets and rights that the bankrupt has (active mass), all outstanding debts and their holders (passive mass), as well as the manner of payment to said creditors within the possibility that there is taking into account the active mass.
In this same resolution of the declaration of insolvency, the appeal to the creditors will be agreed so that, within one month from the day following the publication in the Boletín Oficial del Estado (BOE) of the insolvency declaration, they inform the Bankruptcy Administration on their credits.
This period is very important, since if our Bankruptcy Administration is not notified about our credits to the Bankruptcy Administration, they could be qualified as subordinates, which means that we will be the last to collect.
We must clarify that according to the Bankruptcy Law, the Bankruptcy Administration will have to send an individualized communication to the creditors , informing about the beginning of the procedure and the duty to communicate the credits according to the law.
Imagine that we receive a notification from a Bankruptcy Administration informing about the declaration of bankruptcy of a client, or, we have knowledge of the contest situation by other means, in this case we must urgently find out the date of publication of the declaration of insolvency in the BOE, so that, as already indicated, we proceed to communicate the credits in our favor to the Bankruptcy Administration.
In this communication, the following aspects must be pointed out, and all the documents that prove the existence of the credit we notify must be attached to it:
- Name, address for notifications and / or email for notifications and any other identity data of the creditor.
- Origin of the debt, specifying the credit data (start, maturity, characteristics), and amount thereof on the date of the declaration of insolvency.
- The qualification that, as established in the Bankruptcy Law, we give our credit.
According to bankruptcy regulations, the credits of the creditors that make up the passive mass can be qualified as follows:
- Privileged credits, these being the credits that are linked to part of the bankrupt’s assets, such as a mortgage loan whose guarantee is a property owned by the bankrupt (special privilege) or to the entire estate (general privilege), as developed in bankruptcy regulations.
- Subordinated credits, which will be those stipulated in the Bankruptcy Law.
- Ordinary credits, which will be all those that do not enter the rest of the qualifications, since most of the credits are of this type.
There would also be credits against the mass, which are those that are accrued during the development of the procedure and that are determined by law.
It can be the case that our credit is subject to a suspensive condition or that it is a litigious credit, in these cases they would be recognized as a contingent credit and with one of the qualifications indicated above (privileged, subordinate or ordinary) according to your nature.
Once our credits have been communicated to the Bankruptcy Administration, we will have to wait for the Provisional Report to be issued, as well as the inventory project of the bankrupt’s active mass and the list of creditors, being as established in the Bankruptcy Law , the Bankruptcy Administration has the obligation, before submitting said reports before the judge in charge of the contest, to remit to the creditors who have communicated their credits and to those who have an electronic address, the inventory project and the list of creditors, in order that they may be interested in any modification if they are not satisfied with the recognition of their credits or with any other aspect.
If we request any modification of the inventory or the list of creditors and the Bankruptcy Administration is not shown in accordance with our application, the only thing that remains is to appear in the Bankruptcy Procedure, being necessary for this purpose lawyer and attorney, in order to file a claim to challenge inventory and / or list of creditors, depending on our interests.
At this point, we must point out that it can be very convenient to appear in the contest from the first moment we have knowledge of it, especially if the amount of our credit is high, or we find that our credit has some specialty, every time that, as we have indicated, the Bankruptcy Administration does not in all cases inform the creditors about the inventory of the active mass and the list of creditors, so that if we do not appear in the procedure it could be that our opportunity to recover our credit for not having been recognized or recognized, but not according to our request.
Verónica Ávila Díez