Two new decisions on article 90.1.6 of the Insolvency Act coincide in stating that the last  point of this precept refers to the pledge securing future credits, and not to the pledge over future credit rights.

These two decisions,  added to the repertoire of case law on article 90.1.6 of the  Insolvency Act, consider that the priority regulated under this  precept will apply to  pledges securing future credits, but not to guarantees the object of which is this type of credit.

The first judgment discussed the classification corresponding in insolvency to a creditor enjoying a pledge over present and  future balances of a bank current account. The  lower-court judgment limited the priority to the amount that  existed in the account on  the declaration of the insolvency and considered that the balance exceeding such amount was for the insolvent party’s free disposal. As a starting point, the  provincial court of  appeal reviewed the legal recognition of the two concepts: (i) the pledge securing future  credits, recognized from the outset by article 1861 CC (guarantees of obligations subject  to conditions precedent) and article 142 of the Mortgage Act  (mortgage securing future obligations); and (ii) the pledge over future credits,  which was regulated for the first  time in article 90.1.6 of the Insolvency Act (precept admitting special priority without the  need for the pledge to appear in any public document, or for the debtor to be notified, as  it only requires a certified date). After reviewing the parliamentary iter of the  reform of  article 90.1.6 of the Insolvency Act and the various case law stances developed since the  amendment of this precept,  it  concluded that the resistance of the  pledge over future  credits should be analyzed with “the same legal tools we had before the reform.” Thus, it  should be understood that the credits secured with a pledge over credits will always have  priority if they appear in documents with a certified date. Below are the three theories  raised concerning the resistance of the pledge over future credits: (i) the theory of total immunity, for which a priority extends to credits arising before and after the insolvency;  (i) the strict theory, which only recognizes priority for those arising previously; and (iii)  the intermediate theory, used by the Supreme Court in its judgment dated February 22, 2008, and in most case law, for which the priority will be extended to all future credits in  respect of which the legal relationship from which they arise was formalized before the declaration of insolvency. The court agreed with this latter theory and stated that if the  future credit is legally determined (or can be determined without any further procedure),  the guarantee will be effective in the insolvency even if not publicized.  In this  case, as  the current account agreement was entered into before the declaration of insolvency, the  guarantee covered the entire positive balance of the account.

In the second case, the La Coruña  Court of Appeal  examines two types of guarantees  granted to the tax  authorities to secure various payment deferrals: the assignment by  way of security of certain credit rights  and  various  pledges over credit rights. All guarantees were subject to registration in the corresponding Chattel Registry. Regarding the assignment of credits, the judgment agreed with the arguments of the first-instance court and considered that, as the cause of the assignment is the guarantee in fulfilment of payment of the debt deferral, it should be classified as a pledge over future credits, as  the credit is not transferred with release of  payment (assignment without recourse),  which would involve the right to separation from the insolvency  estate,  but rather  release would only take place on collection of the credit (assignment with recourse).

For this court, the first two points of  article 90.1.6 of the Insolvency Act refer to the pledge over credit rights with transfer of possession, it  sufficing for this to appear in a  certified document for the special priority over the pledged credits to be enjoyed, as the  final point of the article refers to the pledge, whether of assets or rights, securing future  credits. Having clarified that the case at hand did not fall under this section, the court of  appeal seemed to opt for what it considered to be the majority case law interpretation  and  to conclude that the pledge over future credits is only enforceable in  insolvency when the credit given in guarantee has legally arisen  before the declaration of  insolvency.