Since its approval in 2015, the so -called Second chance law He has injected a dose of hope to people drowned by debts. The norm gives the possibility to those who have suffered a business or personal economic failure and have entered a spiral of over -indebtedness of hunting his life again “without having to drag a slab indefinitely that he can never satisfy”, as his literal tenor collects.
In addition, in September 2022 A legislative reform was approved to favor the exoneration of unsatisfied liabilities. That is, forgiveness of all or part of the debts. Until that time, the debtor had to demonstrate his good faith and the second chance was understood as a benefit. With the modification of the bankruptcy law operated two and a half years ago, the shots change. It is the creditor who has to demonstrate the bad faith of the person who owes him money. Otherwise, exoneration becomes a right.
This reform introduced a novelty that, although it was conceived as a way to facilitate and expedite forgiveness for good faith debtors, has not been exempt from controversy. These are the so -called creditors without mass or express (for those people who do not have enough funds to settle their debts) and have become the fastest (and used) route to benefit from that second chance. According to data from the College of Registrars, in the last quarter of 2024, 705 Creditors Contests were opened in the Canary Islands and, from them, 645 were without mass, 91%. The variation rate exceeds 100% in the islands. The number of competitions has duplicated, therefore, in a year.
The particularity of the contests without mass is that the figure of the bankruptcy administrator for its resolution is not essential and that it must be the creditors themselves who request their presence in case of considering it necessary. In addition, only creditors who have recognized at least 5% of the total debts of the bankrupt and, what is more relevant, have a period of just fifteen days since they are published in the official bulletins, the insolvency declaration is published.
Since their approval, lawyers specialized in the field have been warning of the risk of abuse or fraudulent use of the norm. “Nobody is looking at the BOE every day to see if a debtor has declared himself in the contest. Maybe, many realize when the deadline has passed,” they warn from the office Díaz Saavedra & Yánez lawyers, who has just obtained a sentence (already firm) novel in this area, since he has managed to prove the bad faith of the debtor and, therefore, the statement of the contest as well as the statement of the contest. Impossibility of accepting the Law of Second Opportunity. The reason is that in this process it was detected that it had hidden income. Specifically, compensation of 81,000 euros for dismissal.
The origin: a shared house
In that procedure, the aforementioned office represented the interests of a creditors, Vanessa Martín, ex -partner of the debtor. According to this Grancanaria citizen, the origin of the conflict dates back to the end of 2016, a year after separation, and is related to the house that both had acquired (each to 50%) more than a decade earlier. In the separation it was agreed that the use of family housing, whose property continued to share, be attributed to the daughters, minors, and the mother, who has her custody. Thus it was collected in a judicial judgment. Vanessa registered that right in the registry “to be recorded before any management that I would like to do.”
A year after separation, Vanessa began to assume the payment of mortgage quotas alone after her ex -husband stopped paying her part when a relationship with another woman began. As a consequence of these non -payments, which followed until the loan settlement in 2022, Vanessa filed up to four demands in claim of quantities. The Courts proved him in all those procedures, condemning the man to pay half that corresponded to him and, in the last two, also to the procedural coasts, appreciating bad faith in his performance, since he had already lost the previous two for the same reason (one of them even after an appeal before the audience of Las Palmas) and had ended up being raid to the pretensions of his ex -partner.
Vanessa says that of that money that he had to charge for firm judicial resolutions, something “on accusagotas” came through embargoes. However, this executive route was suspended as a result of the declaration of the personal bankruptcy contest.
In the midst of this process, Vanessa’s former had married his new partner, who was just one month after the wedding had donated his undivided half of the house. At that time, February 2018, the mortgage debt exceeded 22,000 euros. After that donation, the new couple requested the auction of the house and, some time later, claimed a rent (more than 24,000 euros) for the use of common housing, in a lawsuit that was dismissed in April 2024 but has been appealed.
The creditors contest
That lawsuit was filed in February 2023. Two months later, the former Vanessa and his current partner requested the declaration of the creditors contest, interested in being processed without mass, by rapid route. They argued that they did not have enough funds to settle their debts. Vanessa learned of that circumstance for a “fortuitous” meeting in a mall, when crossing with the wife of her ex -husband. “He approached me and told me a few words that put me on alert, about warning,” he recalls. He decided to comment to his lawyer and, after verifying that he had initiated that process with which his ex pretended to achieve the exoneration of debts, he immediately requested that an administrator be appointed, since he was still in the deadline.
Both the administrator and Vanessa’s lawyers requested the guilty contest declaration after it was detected during their processing that the debtor had hidden an important income to avoid paying his ex -partner. Specifically, compensation of 81,000 euros for an inadmissible dismissal agreed in October 2023. That is, a month after the declaration of the contest. The company had promised to pay that amount in ten deadlines. In addition to not making that money available to the contest and, therefore, of hiding it, at no time gave explanations about his destiny. All this with the aim of achieving the forgiveness of debts while maintaining, through their current partner (they are married in the marriage), 50% of the housing property.
The sentence
The Judgment of the Commercial Court 3 of Las Palmas de Gran Canaria (already firm) concludes that there has been an uprising of assets. “The debtor is fully aware that with his acts he is decreasing his assets, causing a serious damage to creditors.” This judicial resolution refers to the Supreme doctrine that emphasizes the “clandestinity” of the action. “This clandestinity is evident from the point and time when, being in the suspension of powers (by the declaration of voluntary competition of creditors), that income has been hidden, which has determined at least the aggravation of insolvency,” says that document.
Vanessa’s lawyers held in their qualification report that there had been a “simulation of the patrimonial situation” of the debtor, since the economic memory of the contest was collected, collected monthly income than those appeared in some of their payrolls, which would have allowed him to get rid of the seizure of his salary.
In addition, they alluded to other “serious inaccuracies”, as in memory, it was affirmed that man worked as an accountant “when the truth is that his professional category is that of commercial director, with obvious financial and business management knowledge”, that the cancellation of the mortgage or the opening of a judicial procedure in which Vanessa is a rent is hidden, which implies a “expectation of the right of collection”.
In the opinion of the creditor, there was “sufficient active mass” with the money of compensation, half of the property of the house and that expectation of collection, to settle the debt.
The debtors, on the other hand, blamed their insolvency to “the low income they received”, especially following the Covid-19 pandemic, and the spiral of over-indebtedness in which they would have entered after requesting loans to deal with expenses.
When accrediting the debtor’s bad faith, the sentence qualifies the contest, disabled when Vanessa’s ex -husband and their current partner to administer others and represent any person for a period of five years and condemns them to return the compensation of 81,000 euros, as well as “the goods or rights that would have improperly obtained from the debtor’s assets or would have received from the active mass”. That is, they close the door to take advantage of the second chance and force them to pay the debts contracted.
“Winning this can have an important magnitude at the legal level, but for me the greatest satisfaction is on a personal and emotional level after having won the battle of these nine years that has been complicated and intense,” Vanessa values, which still maintains other open judicial procedures. Among them, a criminal case in which his ex -partner is investigated for the crimes of frustration of the execution and documentary falsehood.
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