Well, to the question: “Is the establishment of a trust to be necessarily understood as an act in fraud against creditors, if the debtor accesses the over-indebtedness procedure?”, The Court of Benevento. In the present case, in the face of a dispute raised by the creditors, the Judge opted differently. So much so that it admitted the debtor to the liquidation procedure, even in the presence of deeds contested by the creditors. But let’s look, in greater depth, at the decision in question. In the present case, the Judge held that for the purposes of access to the law saves suicides, did not detect the existence of a trust, contested by creditors as an act of fraud in them. Let’s go down, therefore, more on the merits of the judicial matter in question.
The case decided by the Court of Benevento
The case decided concerned a well-known professional who entered the assets liquidation procedure. This, making available only his future credits, deriving from the work activity. However, the legal question has arisen as to whether the establishment of a trust is necessarily to be understood as an act in fraud against creditors, if the debtor has access the over-indebtedness procedure. In the present case, the debtor’s immovable property had been transferred, years earlier, to a trust. For this reason, the creditors opposed the debtor’s access to the procedure provided for by the suicide saving law no. 3/12. They contested the prior constitution of the trust, as an act of fraud against creditors. The issue was all the more pungent as the Revenue Agency had also challenged the aforementioned crime of fraudulent theft of the payment of taxes.
And this precisely because the trust had made the compulsory tax collection procedure ineffective.
Despite this, however, the Court of Benevento has opened the door to the debtor to access the over-indebtedness procedure. But let’s see why. The Judge noted that since the rationale is to guarantee creditors’ satisfaction, there would be no reason to exclude its application if this condition is met. In fact, if there is a serious and adequate refreshment plan for the same, this would be sufficient to leave room for the operation of the “suicide save”. With respect to this fact, which coincides with the satisfaction of the purpose of the law, it does not reveal that previously fraudulent acts have been committed. Ultimately, if a repayment plan is proposed with which full creditors’ satisfaction is guaranteed, access to the procedure cannot be denied.
With respect to this, the question of subtractive and fraudulent acts can be relied on in other respects and not for the purposes of the inapplicability of the over-indebtedness procedure. This, in fact, has precisely the purpose of guaranteeing the best satisfaction of creditors, which cannot be excluded by virtue of the previous existence of subtractive acts.
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