Nov 14., 2017 / Bankruptcy
NEW LIABILITIES AFTER BANKRUPTCY
Some consumers are thinking of borrowing after the bankruptcy, counting on the redemption of “old” debts, ie, created before the bankruptcy in california. It should be immediately recognized that this attitude is not morally justified, which the legislature gives expression in the law. The regulations impose a kind of guardianship on the part of the receiver, authorizing the bankrupt to enter into contracts only in the minor current affairs of everyday life. This term does not include the conclusion of credit or loan agreements, and even if the bankrupt has entered into such an agreement, it would be ineffective and the debtor would have to return the funds received to the creditor. Of course, such a situation would only be based on the assumption that the creditor did not know the status of his contractor – knowing that he was dealing with a fallen, would not make a contract explicit. Such situations should eliminate the fact that after the consumer bankruptcy is declared, the debtor ex office is entered in the Register of Insolvent Debtors.Therefore, there is no real possibility of taking new loans and loans after declaring consumer bankruptcy and before the court sets a repayment plan .
The question is whether the debtor will be able to incur additional liabilities related to the loan or loan after the repayment schedule has been established and before the enforcement order is issued. The answer to this question will be the basis of art. 491 18 sec. 1 of the Bankruptcy Law, under which “During the execution of a repayment plan, fallen creditors shall not be entitled to exercise any legal action relating to its assets which could impair its ability to meet its creditors’ repayment schedule.” It was therefore proposed that a bankruptcy following the establishment of a repayment plan could not worsen its financial situation, and that the conclusion of a loan or loan agreement would be undermined. From this principle, however, the Act provides for an exception in Art. 491 18paragraph. 2 Pr. Under which “In particularly justified cases, the court, at the request of the bankrupt, may agree to make or approve the legal action referred to in paragraph. 1 “. This means that there would have to be “particularly justified” cases whereby a bankrupt can enter into an obligation and then apply to the court for approval of the obligation. This provision also allows the consumer to ask the court to approve the action after the legal action has been taken, but the application for approval will have to be even more convincing than the request for legal action. In the event of taking out a loan (without a prior approval of the court and not obtaining the approval of the court) the fallen would expose the plan of repayment and discontinue proceedings without the desired debt. It should also be added that the bankrupt will have to find a contractor (eg bank) ready to provide financial support, and this will not be easy. Summarizing:Once the repayment schedule has been established and the debtor is released only and exceptionally with the consent of the insolvency court, he will be able to incur additional liabilities in the form of a loan or a loan .
Finally, we can go to the question which is the most important one from the past, namely that after the court has canceled the obligations of the bankrupt, living with the “clean card” were (already) the debtor will have the opportunity to take new commitments? From a formal point of view, there is no obstacle for a consumer who has gone through a bankruptcy procedure under a bankruptcy law to sign a loan or loan agreement. After all, such person is ex office deleted from the National Register of Insolvent Debtors. However, in the practice of granting a loan or loan, the creditor (the bank) will decide, as always, the potential customer’s creditworthiness. And in the course of this study may reveal the circumstance of the past bankruptcy of the debtor. For example, the debtor will appear in the Banking Register,Bankruptcy may be, but not necessarily, an obstacle in the eyes of the lender to grant the former bankruptcy financial support . Perhaps the bank will require an additional collateral for such a person. Certainly, however, every case will be treated individually, and many banks will be guided by their own internal credit policies, which do not necessarily have to be restrictive to ex-bankers.
However, it should be remembered that a debtor who has already declared a consumer bankruptcy will be able to count on a further debt reduction in this mode only in 10 years.