Closure of the judicial reorganization procedure. Consequences for the charges on the immovable properties of the debtor company

DREPTUL CONTENCIOSULUI ADMINISTRATIV ŞI FISCAL

Abstract

By reference to the provisions of Article 76 para. (1) of Law no. 85/2006, creditors shall not be entitled to recover their claims against the debtor legal entity subsequently to the closure of the procedure, provided that the debtor was not convicted for simple or fraudulent bankruptcy or he was not held responsible for making fraudulent payments or transfers. However, in this case, there was no evidence that the debtor was convicted for simple or fraudulent bankruptcy or that it was held responsible for making fraudulent payments or transfers in relation to those debts that served as the basis for the registration of the mortgages under consideration. Both under the old Civil Code (Article 1800), and in the current Code (Article 885, Article 2428) - since the mortgage agreements under consideration were concluded, few of them in virtue of the old Civil Code, while others, subsequently to the effective date of the new Civil Code -, it is stipulated that the deregistration of mortgages may take place, as a rule, either with the creditor’s consent, or as a consequence of the settlement of the main obligation. The interpretation of the hereinabove mentioned provisions should be made in conjunction with the provisions of Law no. 85/2006 establishing also in the insolvency matter, other methods for the settlement of obligations. As a consequence of closure of the judicial reorganization procedure in relation to the debtor-mortgage guarantor, no obligation shall remain within its responsibility for any prior claims, even if the main obligation (of the secured third party companies) is likely not to be settled (a check which, however, is not covered by the appeal). While the debtor is discharged from any prior debts following the closure of the insolvency proceedings, it is not allowed anymore to keep the registrations related to the right under a mortgage. Hence, this could create the prerequisites of the subsequent initiation of an enforcement procedure against the debtor, even if it is - after closure of the reorganization procedure, according to Article 132 para. (1) of Law no. 85/2006 - discharged from any debts arising prior to the opening of the insolvency proceedings.