Opening the insolvency procedure required on the basis of a credit agreement for which there is res judicata power regarding the application of the limitation term of the material right to action regarding the receivable of Lei 805,776.35

LITIGII CU PROFESIONIŞTI

Abstract

According to Article 5 point 20 of Law no. 85/2014, the creditor entitled to request the opening of the insolvency procedure, is that creditor whose receivable on the debtor's patrimony is certain, liquid and due for more than 60 days. A receivable is certain, for the purposes of this law, if its existence results from the deed of receivable itself or from other acts, even inauthentic ones, issued or recognized by the debtor. 
However, there is the power of res judicata regarding the intervention of the prescription of the material right to action regarding the receivable of Lei 805,776.35 lei based on the credit contract no. 64 / 10 May 2006 retaining the considerations of decision no. 1240/2016 pronounced in the file no. 3443/324/2014 of the Galaţi Court. 
The receivable in the amount of Lei 805,776.35 expired, as it is not certain, liquid and due, so that according to the above-mentioned provisions it can no longer be invoked as a ground for opening the insolvency procedure. 
 With regard to the mortgage contracts with which the receivable was secured, the creditor CEC Bank has the possibility to capitalize on the rights arising from the mortgage contracts by way of foreclosure, currently in progress. The same is the situation for the defenses regarding the intervention of the limitation term of the material right to request the forced enforcement based on the mortgage contracts, exception invoked by the 
appellant debtor Ianysoil SRL.