Insolvency. Objection against the decision of the creditors’ meeting. Voting the reorganization plan. The presumption of the positive vote of the category of undisfavored receivables. Effects of the fiducia contract in the insolvency procedure.

DREPTUL AFACERILOR

Abstract

The legal norm provided in Art. 139 para. (1) letter E of Law no. 85/2014 does not establish an irrefutable absolute or juris et de jure presumption, since its conjunction with the provisions of art. 138 reflects the relative character of the presumption, meaning that it 
can be considered having accepted the plan only that disadvantaged claim that was not present and did not express a vote on the plan, so that the plan will not be considered accepted if the titleholder creditor votes against the plan, at the meeting or by correspondence. 
The proper conclusion is that with the negative vote of the titleholders of the undisfavored receivables, the relative presumption set by the law is reversed. 
The second legal issue refers to the fiducia agreement concluded during the insolvency procedure. 
The fiduciary to whom the fiduciary patrimonial assets were transferred by the constituents who controlled, were controlled by or were under the common control of  debtor act absolutely independently, in own name, as a true and unique titleholder of rights, without any interference from constituents and for the fulfilment of the purpose of fiducia therefore the prohibition on voting for the reorganization plan set forth by Art. 138 para. (5) of Law 85/2014 is not applicable to it.