The time limit provided for requesting the modification of the final list of creditors varies depending on whether the agreement is being complied with or liquidated. When the modification is requested during the liquidation phase, the applicable time limit is that of the liquidation.
The Supreme Court in a recent judgment of November 4, 2016 modifies the doctrinal interpretation of article 97bis.1 of Law 22/2003, of July 9, Bankruptcy (LC), regarding the existing time limit for the modification of the definitive list of creditors established in article 97.3 LC, differentiating this time limit depending on whether the bankruptcy is in the phase of compliance with the agreement or it is already in the liquidation phase.
In general, once the Order of declaration of bankruptcy has been published, the creditors will be called to inform the bankruptcy administration of the existence of credits, within a period of one month from the publication in the BOE of the order of declaration of bankruptcy (article 21.1.5º), from that moment the creditors will communicate to the bankruptcy administration the existence of their credits, and it shall draw up a list of the amount, maturity and qualification of each of them.
The bankruptcy administration shall submit to the Judge the list of creditors, and it is from that moment, that according to article 96 they may challenge the inventory and the list of creditors, within a period of ten days.
Once the modifications have been made within 10 days, the list of creditors will be considered final.
Amendment of the final list of suppliers.
This final list, however, may be modified in compliance with the provisions of the third paragraph of Article 97 of the LC, which allows modifying the final text of the list of creditors, in the following cases:
1º Until the resolution of the presentation of communications of new claims when having finished the period of challenge, the final texts have not been published (article 96 bis).
2.º When after the initial report or the final text of the list of creditors has been submitted, an administrative verification or inspection procedure is initiated from which public law claims of public administrations and their public bodies may result.
3.º When after the initial report or the final text of the list of creditors has been submitted, a criminal or labor process is initiated that may involve the recognition of a bankruptcy claim.
4.º When after the final texts have been submitted, the condition or contingency foreseen has been fulfilled or the claims have been recognized or confirmed by administrative act, by award or by final procedural resolution or susceptible of provisional execution according to their nature or amount.
Well, the real cassational dispute refers to the interpretation of what is the moment in which the request for modification of the final list of creditors must be submitted in accordance with article 97 bis.1 of the LC, which establishes “The modification of the final text of the list of creditors may only be requested before the decision approving the proposed agreement or presenting to the court the reports provided for in the second paragraph of articles. 152 and 176 bis”.
As interpreted in this article, the time of request for the modification of the final list of creditors will vary depending on whether it is in the phase of approval and compliance with the agreement or has gone to liquidation.
Modification of the list of creditors if you are in the agreement phase.
In the case of an agreement, the preclusive moment of modification of the list of creditors will be the judicial approval of the agreement itself, which the Supreme Court understands that the legislator has wanted to establish a point in which from there the list of credits determines signature in order to prioritize the legal certainty that the amounts of the bankruptcy claims that must be satisfied in the phase of compliance with the agreement are not see increased.
Modification of the list of creditors if it is in the liquidation phase.
In accordance with article 97bis.1, when it says that the preclusive moment for the modification of the final list of creditors will be when the reports provided for in the second paragraphs of articles are presented in court. 152 and 176 bis, that is, within the liquidation phase we can subdivide into two different situations, depending on whether there is sufficient active mass to proceed with the payment of the credits art.152.2 LC, or the communication of insufficiency of active mass for the payment of the claims against the mass of art. 176.2 bis LC.
Ordinary situation 152.2 LC, when there is an ordinary mass sufficient to meet the payment of the claims, the preclusion is fixed in the conclusion of the liquidation operations, prior to the conclusion of the bankruptcy, which presupposes the realization of all the assets and the destination of the obtained to the payment of the credits.
Situation of insufficiency of the active mass of 176.2 bis LC, the preclusion to modify the list of bankruptcy creditors will be justified from the arrival of this own situation, because from then on the modification of the list of creditors becomes irrelevant, insofar as, since there are no longer assets or to pay the claims against the estate, it is obvious that the bankruptcy creditors will not charge anything.
Establishment of jurisprudential doctrine
“i) The time limit provided for in Art. 97bis.1 LC to request the modification of the final list of creditors under art. 97.3 LC, varies according to whether it is in the phase of compliance with the agreement or liquidation.
ii) When the modification is requested during the liquidation phase, regardless of whether or not it has been preceded by a judicial approval of the agreement, the applicable time limit is that of the liquidation: the presentation of any of the two reports provided for in art. 152.2 LC and art. 176bis.1 LC.
iii) Frustrated the agreement and opened the liquidation phase, on the subsequent request for modification of the list of creditors only the time limit provided for in article 97.bis.1 is opposable LC for settlement”.