Luis Prados Ramos



Royal Decree-Law 1/2015 of February 27, known as the Second Chance Law, has introduced a series of modifications to the bankruptcy law, and in the case of non-entrepreneurial individuals, a notarial procedure so that an out-of-court payment agreement can be reached, ultimately aimed at obtaining the release of debts.

The first comments that I could hear or read on social networks, referring to this matter, were typical of "...the government grants more powers to notaries due to the lowering of mortgages..." or the recurring ones of “new forms of privatization of justice”.  Since I write on my website without representing anyone, except myself, as the journalist José María García said many years ago, I would like to let all the people who make comments like the ones above know that social reality goes through other channels. , and that since the day after the publication of the Royal Decree-law, there have already been people in my office interested in the notarial procedure of the second chance law, in the same way that the calls we receive are constant, telling us if they have already They can celebrate weddings before a notary or if it is still mandatory to go to court for a declaration of heirs of collateral, matters that we hope will be resolved, with the law of voluntary jurisdiction.

I have to say that, for my part, we already have almost everything ready to start applying the law, including pending issues, only missing the Ministry of Justice to publish the standard application forms, inventory and list of creditors, through the corresponding Order.

I do not intend to make a compilation of all the procedural requirements of the law, which are quite complex, although I must also say in defense of their authors, that a matter like this cannot be simple. This complexity can take away a certain demand for use, for this reason I believe that we must be the professionals, the ones who make an effort for its application and implementation of it, as I know that the lawyer from Lleida, Mr. Jose Luis Gomez Gusi.

Through the correct use of this law, many of the claims that have been made by the groups affected by mortgages can be achieved, especially the much-demanded dation in payment. But we must also refer, as a warning, that the procedure established by law is not aimed at saving assets, but rather, on the contrary, to liquidate assets, in exchange for not being left with debts.

The procedure is carried out through a notarial instance, in which the debtor, accredited his patrimonial situation, and through the notary himself or a bankruptcy mediator, tries to reach an agreement with his creditors. The great novelty established by the law, compared to its previous wording, is the one related to the content of the agreement, since there is no limit to the removal (or debt forgiveness), on the other hand, the debt deferral limit is extended to a term of ten years (compared to the previous three years) and the possibility of the Settlement.

That is to say, we can request or propose an agreement that adjusts to our real possibilities of payment. The question that the reader can ask is: Will the creditors accept it? It should be noted that the agreement requires qualified majorities, but not unanimity, but in my opinion many creditors are going to enter into the negotiation, due to the risk involved in choosing between charging something or not charging anything, because if an agreement is not reached a payment agreement, the consequence will be the declaration of bankruptcy, which will be opened in the liquidation phase, which will most likely end due to insufficient assets, and the extinction of the unsatisfied liability will be achieved, unless it is better fortune within five years.

The application of this mechanism must be assessed individually for each debtor, and I must reiterate that the previous lines are addressed to non-business debtors, who presumably will not have debts against Social Security or against the Public Treasury, since these debts cannot be be subject to deductions.

But as an example and to finish these lines, subjects that can take advantage of this law, with those debtors who have been left with debts after being evicted and that the banks insist and pressure them to collect the surplus, or those who already they cannot continue paying the amount of the mortgage.

The pity is that this law comes a little late. In my heart I always thought that it would be the first legislative measure to be promoted by the Rajoy government, but as you can see my skills as a fortune teller or analyst of political activity are quite scarce.



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