24 Mar My debtor has vanished or the technique of “persianazo”

Frequently, if you are a businessman or entrepeneur you heard one day the typical phrase of “they have hit the persianazo”, “and now what I do?” “How do I claim them?” Surely you have encountered this situation on occasion.

 We call a “persianazo” in Spain when somebody close a business without following the rules for liquidating companies, and when that is done quickly in order to defraud their creditors.

Navarro Llima Abogados S.L. clients often have suffered the consequences of this “technique of persianazo”, sometimes by delaying in excess the debt claim, finding that the company no longer exists, do not answer the phones or receive the communications. It has been deleted from the map. The debtor company may even have been formally dissolved and liquidated. What can be done? Can you still demand debt collection?

The answer is undoubtedly affirmative, requiring a much more specialized preparation because an ordinary judicial claim can not even be delivered at destination, making a judicial proceeding probably not even begin.

The alternatives are many and each situation requires a concrete solution. In the event that the debtor is a company that is formally dissolved and liquidated without dealing with the amounts owed to creditors, the baffling of the creditor may be absolute, but you still have options.

As we say there are legal ways to enforce the claim and recovery. The truth is that in order to liquidate a company correctly it is necessary, among other things, to follow the next steps under the legislation of capital companies: 

-The dissolution must be agreed by the shareholders’ meeting, which, when adopting the agreement, appoints the liquidator or liquidators.

-The liquidators’ mission is to pay all debts, in order to distribute the equity among the partners. It is not possible to carry out the dissolution of the company if all the debts have not been recorded.

-Once all debts have been paid, the deed of the company is granted, which includes the liquidation balance sheet and in which the liquidators state that it has been paid to all creditors (or at least that they have been recorded Or insured all his credits).

In their case, the liquidators of the debtor company could say that there was no outstanding debt “forgetting” the debt they had. That forgetfulness or that half truth, may end up becoming the worst of lies, since it can open the doors to the claim of what is owed with many possibilities of success.

What actions does a creditor have to claim and against whom?

The law on capital companies imposes on the liquidators a liability regime equivalent to that of the administrators, so that those affected / creditors for the non-payment of the company in liquidation that see their rights injured have an action against the personal equity of the liquidators, because they managed the company without the required diligence.

The creditors have a legal action against the personal patrimony of the liquidators for the acts and deals that they perform against the law or the statutes, or for the ones done without the required diligence.

Liquidators may even incur criminal liability for having stated before a notary that “there were no debts” when they were, or for having tampered with the accounting of the company and could also act against their personal assets.

These fraudulent actions of the partners, administrators or liquidators are usually in direct connection with crimes of uprising, falsification in commercial documents and frustration of execution. 

As we see there are several ways to act in these situations, in Navarro Llima Abogados S.L. We will advise you in the right direction to recover your credit.