Claim for annulment of fraudulent acts concluded by debtor to the damage of creditors

DREPTUL AFACERILOR

Abstract

If the act whose annulment is requested concerns the creation of a preference right for an unsecured receivable, within the 6 months prior to the procedure opening, the 
presumption described in Art. 122 para. (3) of Law 85/2014 is applicable and it is a relative presumption that can be reversed with the contrary proof. The presumption derogating from the principle enshrined by Art. 249 of the New Code of Civil Procedure, that the person who makes a statement before the court must prove it, was set for reasons related to the protection of the creditors of the insolvent debtor, on account that said documents are suspected of fraud. Concerning the objection for “normal conduct of the debtor’s current activity”, said document – the movable mortgage agreement – does not fall in this situation. The normal conduct of the current activity consists in carrying out the usual acts and operations  during the period prior to the state of insolvency. However, the provision of a guarantee, in the conditions of an imminent state of insolvency, can only be considered as an exceptional activity, which seeks to favor the previous unsecured creditor, being an isolated act, concluded in exceptional conditions, outside the scope of business or the ordinary trade of the debtor, which cannot benefit from the exception established by the provisions of Art. 119 of Law no. 85/2014.