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Eduardo María Valpuesta Gastaminza, , Full Professor Commercial Law . University of Navarra

Second Chance', pure makeup

Once again it seems that a newspaper headline has been sought, that it has been 'advertised' that something is going to be changed, when in reality a very similar status is maintained.

Fri, 06 Mar 2015 11:09:00 +0000 Published in Navarra Newspaper

In the last discussion of the State of the Nation, the President of the Government announced as one of the star measures a new regulation of the "second chance" for indebted individuals. And last Friday this regulation was published in the BOE (Official State Gazette), in the form of a decree-law of "second chance mechanism". Individuals have a clear disadvantage, one more, with respect to legal entities, when their economic activity turns out to be loss-making. In the case of legal entities, the company can file for bankruptcy, liquidate the debts as far as it can, extinguish the company, and those same partners can set up a new legal entity the following day to carry out the same activity starting from zero and without previous debts. On the other hand, individuals cannot do the same, because the unpaid debts 'haunt' them. Nowadays, many married couples who took on a reasonable mortgage have seen how, because one or both spouses are unemployed, they cannot pay that debt and have been left without a house, awarded to the mortgage creditor bank, and with several thousand euros still pending payment. The reform is aimed at these over-indebted natural person debtors 'in good faith'. It should be borne in mind that today the insolvency proceedings of individuals account for approximately 12% of the total insolvency proceedings declared, so their importance should not be underestimated. The idea of the new rule is very clear (although the details are too complex): the debtor, an individual debtor, may see the debts he/she has not been able to pay extinguished if he/she complies with a series of conditions requirements. Firstly, because he has paid a significant part of his debts (the expenses of the insolvency proceedings, the privileged credits, and 25% of the ordinary ones); or secondly, because having paid less than that amount, he undertakes to pay a significant part of what remains within a reasonable period of time (it is understood, thanks to the income that he may receive from his dedication). In both cases, and in spite of what some newspaper headlines say, it is not necessary to have paid the entire credit mortgage. The mortgage credit , when there is a bankruptcy, is considered as 'privileged' credit , but it is only privileged up to the amount of the value of the mortgaged property; when the property is sold, and with the resulting amount the credit is paid as far as it reaches, the part that may remain unpaid is no longer credit special privileged (since there is no longer a mortgaged property), but credit that will be qualified as appropriate. Therefore, it is not necessary, in order to be exonerated of the debts, to pay the mortgage in full.

agreement The reform has also made it possible for all natural persons to resort to an "out-of-court payment agreement" (until now, non-entrepreneurial natural persons could not do so), which is a transcript that makes it possible to reach an agreement with creditors without the costs of the bankruptcy process. It has also eliminated some of the problems posed by the regulation of these agreements (for example, it has modified the limits of the agreement, which previously required the payment of too high a portion of the debt).

In any case, what is striking is that this reform has been 'sold' as a great change, as an incentive to facilitate the exit from the crisis, when a substantially identical regulation of exoneration of debts of the natural person already existed in our country since the end of 2013, through the Entrepreneurs Law. Certainly the current regulation is more detailed, and it is sample more balanced than the one established in 2013. But the "second chance" already existed before, and in fact it has caused the exemption for some families (everything must be said, sometimes because the judges have made a 'creative' interpretation of the Law). The current regulation has improved some aspects, such as, for example, that the same person cannot be exonerated every few years (now it is required that he/she has not benefited from an exoneration in the previous ten years). However, other rules are maintained, such as that the exoneration does not benefit guarantors or joint and several debtors (for example, parents who had guaranteed the mortgage of their children). Once again it seems that a newspaper headline has been sought, that it has been 'publicized' that something is going to be changed, when in reality a very similar status is maintained. The basic problem of the economic crisis of the families will not be solved with this, but with changes in the real Economics that manage to generate more employment and improve salaries. Everything else is pure make-up.