By Francisco Garcimartín Alférez
Till the arrival of Royal-Decree-Legislation 5/2005, a creditor with a pledge of listed securities might keep away from the cumbersome path of judicial or extrajudicial execution that, no less than in terms of property which can be traded on an organized market, don’t have A lot sense and even are counterproductive resorting to the provisions of article 322 of the Business Code (C of c) that enables the execution by direct sale:
“When the mortgage time period has expired, the creditor, except in any other case agreed and with out requiring the debtor, shall be approved to request the sale of the securities given as collateral, for which goal it can ship to the governing our bodies of the corresponding official secondary market the mortgage coverage or deed, accompanied by the pledged titles or the certificates certifying the registration of the assure, issued by the entity answerable for the corresponding accounting document “.
And, in its software, one of many traditional issues that this principle has raised was the crucial nature or gadget of the interval of three days supplied for in its third part:
“The Pledge Creditor You’ll be able to solely make use of the particular government process regulated on this article in the course of the three enterprise days following the expiration of the mortgage..”
Within the judgment of July 27, 2021, ECLI: ES: TS: 2021: 3233, the TS has concluded that this era of three days is gadget, ie the events can agree on a long term, even open, in order that the creditor can proceed to promote the shares available on the market. Though I’m not positive that this was the desire of the drafters of the principle, it’s true that the time period of three days, inflexible and brief, can find yourself being counterproductive for everybody: if the amount of shares pledged could be very excessive, its sale in a such a brief time period can find yourself negatively affecting the value.
However it’s not concerning the crucial nature or gadget of the principle that I needed to speak about, however about one of many arguments supplied by the Supreme Courtroom to assist its conclusion: the necessity to defend third-party collectors of the debtor.
At first, imperativity of the principles on enforcement procedures, together with enforcement “by appropriation” or by direct sale, the place these match, is often justified by the necessity not a lot to guard the debtor (which, in sure circumstances, additionally) however to your collectors (at., p.ej., Art. 13th Royal Decree-ley 5/2005).
Within the “execution by appropriation” the “executing” creditor might have an curiosity in undervaluing the asset given as collateral, both to maintain an asset with an actual worth larger than its credit score, or to proceed claiming for the distinction between one and different. However in all the opposite foreclosures procedures evidently the primary all for maximizing the realizable worth is the executing creditor himself: the extra he obtains within the execution, the larger a part of his credit score he can get well.
That is true, however solely as much as the restrict of that credit score. From this, what’s obtained is detached to the performer. Thus, for instance, if the credit score is for 10 and the asset is value 20, the executing creditor has no curiosity apart from acquiring a worth of 10. The surplus doesn’t correspond to him, however belongs to the patrimony of the debtor-pledgee. And because of this, it’s the debtor and, the place applicable, his different collectors, particularly if they’re seizure or second-rank collectors, who’ve an curiosity in maximizing the belief worth of the encumbered asset to be able to profit from the rest.. That’s, to acquire as much as 20 within the instance and to have the ability to gather on the remaining 10. PBecause of this it’s typically stated that the principles on execution procedures attempt to assure the maximization of the belief worth and its crucial nature is justified by the necessity to defend the curiosity or the expectation of these third social gathering collectors of the debtor-pledgee, particularly if they’ve a choice over the rest. One other factor is that, in apply, the enforcement procedures supplied for by regulation don’t obtain this goal and their flexibility by interpretative means is justified.
Maybe that is what underlies the TS’s reasoning, however what puzzles me It’s during which third events do you look to affirm that the gadget character of article 322 C of c doesn’t hurt them.
The particularity of the case that provides rise to the sentence is that the pledgee just isn’t the debtor (who, as well as, was in chapter) however a 3rd social gathering. And the Courtroom seems to be on the debtor’s collectors to see if they are often harmed by the execution of the pledge. At this level, your reasoning appears compelling:
“Within the first place, because the contested judgment signifies, no hurt to the bankrupt’s collectors will be appreciated [deudor], since for the passive property the quantity for which the pledged shares have been carried out within the government process is detached, since, because the appellant admits, the a part of Sareb’s credit score [acreedor] canceled attributable to execution must be changed within the contest by a credit score of the identical quantity in favor of Martibalsa herself [pignorante no deudor], born as a consequence of the execution, by the use of subrogation (arts. 1158, 1159 CC on the contrary, 1210.three and 1838 CC and 87.6 LC); as soon as your credit score is acknowledged within the chapter, you possibly can repeat in opposition to the debtor by way of the chapter process itself; so the impact of the foreclosures for Rayet’s collectors [el deudor] could be impartial.”
That is, in precept, Whether or not the belief worth has been so much or a bit of in relation to the quantity of the assured credit score is impartial for the primary debtor: he all the time owes the identical. The distinction is who it’s essential to pay it to: the primary creditor or the guarantor who brings the motion for reimbursement.
That is true as a common rule. Utilized on this case, nonetheless, the argument raises sure doubts since it’s extremely possible that the pledgee’s reimbursement credit score was subordinate and, consequently, its quota accrued to abnormal collectors by advantage of (present) Article 263.2 II TRLC:
“As soon as the fee has been made, with subrogation of the debtor within the authorized place of the secured creditor, the chapter administration It’s essential to reclassify the credit score choosing the classification of a decrease grade from amongst people who correspond to the creditor or the guarantor”.
Then, it might be stated that the abnormal collectors of the primary debtor have an curiosity in maximizing the belief worth of the asset: the upper that is, the extra the credit score of the primary creditor shall be decreased and the extra its quota will enhance (that of the others). abnormal collectors).
However, even assuming that this principle was not relevant and consequently, the credit score of the primary creditor and that of reimbursement have been of the identical rank, the argument raises one other query: are these third events actually the related ones? The argument focuses on the debtor’s collectors and, in my view, it ought to take note ofa the collectors of the pledgee! It’s these third events who’re affected by the process for finishing up the assure and the upper or lower cost obtained in stated realization. If it has been under-sold, as a result of the pledging creditor is oversecured, they’re those who find yourself struggling it. If we take a look at the property at stake, it’s not related that of the debtor (or, no less than, not solely), however that of the guarantor. And for this one, the impact of the execution just isn’t impartial. One other factor is – as I’ve stated earlier than – that the conclusion, ie the operative nature of that three-day interval, is welcome.