BARCELONA PROVINCIAL COURT (DIVISION 15) RULING OF APRIL 3, 2014, NO.
116/2014, AND LA CORUNA PROVINCIAL COURT (DIVISION 4) RULING OF APRIL 22,
2014, NO. 118/2014: ARTICLE 90.1.6 OF THE INSOLVENCY ACT REFERS TO THE PLEDGE SECURING FUTURE CREDITS
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.