With the crisis and the current difficult financial situation, it is very possible that the business that we had in our hands and that cost so much effort to carry out has failed. Given this fact, the entrepreneur or self-employed is faced with a multitude of problems, many of them manifested in the different debts acquired with their creditors. To alleviate this complicated situation, during 2015 the Second Chance Mechanism Law was enacted, modifying articles of the Insolvency Law and with the aim of giving the entrepreneur the possibility to try again.
What is the second chance?
It is an extrajudicial procedure by means of which, the individual entrepreneur can agree with his creditors the payment of his debts, with withdrawals, moratoria and even the exoneration of these. According to this law:
The debtor who is in a situation of insolvency in accordance with the provisions of article 2 of this Law (Insolvency Law), or who foresees that he will not be able to comply regularly with his obligations, may initiate a procedure to reach an out-of-court settlement. payments with your creditors, provided that the initial estimate of the liabilities does not exceed five million euros. In the case of debtor, natural person, the corresponding balance must be provided.
For the purposes of this title, natural persons will be considered entrepreneurs not only those who have such status in accordance with commercial legislation, but also those who exercise professional activities or have such consideration for the purposes of Social Security legislation, as well as workers autonomous.
At first glance it may seem like a good idea, but the legal text awaits some other unpleasant surprise. The first is that public law credits - those contracted with the public administration such as the Treasury or Social Security - are not included in this way the debts acquired through maintenance pensions. The second, that the process is not as simple and fast as it should be.
How to request an out-of-court payment agreement for self-employed workers and entrepreneurs
In a quick summary, the employer must fill out a complete standardized form that includes an inventory with the cash and liquid assets available to the debtor, the assets and rights of which he owns and the expected regular income. It is also accompanied by a list of creditors, specifying their identity, address and electronic address, with expression of the amount and maturity of the respective credits, which will include a list of current contracts and a list of expected monthly expenses. This form is delivered to the commercial registrar -or the notary according to the case- corresponding to the domicile of the employer
Once the application is filed, a bankruptcy mediator will be appointed, who will be the link between the debtor and his creditors. This, once the amount of the debts has been verified, will summon the debtor and the creditors to a meeting that will be held within the next two months and that will be notified by means of a notary or by any means that ensures its reception.
The debtor can continue with his professional activity, although he will refrain from carrying out any act of administration and disposition that exceeds the acts or operations inherent to the transfer or traffic of his activity, in addition to not being able to request loans or credits and return the credit cards. to the different financial entities. However, judicial or extrajudicial executions of the debtor's assets can not be initiated or continued while the out-of-court settlement is negotiated for a maximum period of three months.
As soon as possible, the bankruptcy mediator will send to the creditors, with the consent of the debtor, a proposal for the extrajudicial settlement of payments with waits of up to 5 years or withdrawals of up to 25%, and the creditors themselves may present their own alternative proposals. Said plan must be voted by the creditors that represent at least 60% of the debt. If the plan is accepted, it will be elevated to public deed and its content will link both the debtor and the creditors.
Conclusions
While it is a priori an interesting idea, the truth is that since the enactment of this law, few self-employed or entrepreneurs have made use of it. The fact that public loans are not included, being the core of the debts of entrepreneurs in times of crisis, has made this procedure not entirely optimal. In addition, the complexity of the matter, the costs of the procedure and the strong limitations that are included in this legal text, do not facilitate at all the entrepreneur in good faith who has failed and wants to try again.
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