Claims secured with an in rem guarantee continue to accrue default interest charged to the encumbered asset and are classified as privileged.
This judgment decided on the appeal filed by a banking entity that challenged the list of creditors in which the default interest accrued under a loan with a mortgage guarantee appeared as subordinated loans. The commercial court understood that the loan was subordinated under article 92.3º IA9 and that, after the declaration of insolvency, default interest could not accrue since there had been no breach of the payment obligation because the insolvent company could not make the payment voluntarily.
In contrast, the court of appeal considered that the subordination described under article 92.3 IA for interest has an exception for loans benefiting from an in rem guarantee with the limit established in the guarantee. This was also the case with the suspension of the accrual of interest established under article 59 IA, which also exempted “interest for loans with an in rem guarantee, which will be enforceable to the extent of the respective guarantee.”
Based on these precepts, the court concluded that during the insolvency, loans secured by an in rem guarantee would continue accruing default interest charged to the encumbered asset, up to the amount established in the agreement, and would be classified as privileged claims.