Mexican Legal Framework of Business Insolvency - White & Case

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44 All pre-commencement per se fraudulent transactions are avoidable [LCM 113]. All other avoidable transactions (cases of constructive fraud, objective preferences and subjective preferences) are avoidable if carried out within the retroactive period [LCM 114-117]. The retroactive period is the period that begins 270 days prior to the declaration of business reorganization [LCM 112]. The judge may extend such period to an earlier date upon the reasoned request of the conciliator, the conservators or any creditor [LCM 112]. i. Per Se Fraudulent Transactions Transactions entered into before the declaration of concurso in which debtor knowingly defrauds creditors, shall be set aside if the transaction is gratuitous or, not being gratuitous, the third party shares the fraudulent intent [LCM 113]. ii. Cases of Constructive Fraud The following transactions carried out during the retroactive period shall be set aside. These transactions are conclusively presumed to be fraudulent [LCM 114]: ■■ ■■ ■■ ■■ ■■ ■■ Gratuitous transactions. Transactions under which the debtor pays consideration of a substantially higher value, or receives consideration of a substantially lower value, than that of its counterparty. Transactions in which conditions or terms significantly differ from then-prevailing market conditions or from trade usage or practices. Any debt remission made by the debtor. Any payment of unmatured obligations. The discount of debtor’s payables by the same debtor. iii. Objective Preferences The following transactions shall be set aside if carried out in bad faith during the retroactive period. Bad faith is rebuttably presumed [LCM 115]:
■■ ■■ Granting of collateral or additional collateral if not originally contemplated in the transaction documents. Payments-in-kind if such method of payment was not originally agreed to in the transaction documents. iv. Subjective Preferences Transactions carried out between the debtor and its related parties during the retroactive period shall be set aside if made in bad faith. Bad faith is rebuttably presumed [LCM 116 and 117]. Related parties of an individual debtor include (1) his/her spouse, concubine, blood relatives up to the fourth degree, in-law relatives up to the second degree, and adopted relatives; and (2) commercial companies in which the debtor or any of the persons mentioned in (1) is the manager or director, or directly or indirectly, together or alone, own more than 51 percent of the outstanding equity capital or have decision-making powers at the shareholders’ meetings, are entitled to appoint a majority of the directors or are otherwise entitled to make fundamental decisions for such companies. It is unclear why the definition of related parties in (2) above includes only commercial companies and not other types of entities such as civil partnerships or trusts, and whether the courts have any equitable powers to expand the concept to include them. Related parties of an entity debtor include (1) a manager or director; (2) the spouse, concubine, blood relatives up to the fourth degree, in-law relatives up to the second degree, and adopted relatives of a manager or director; (3) individuals who directly or indirectly, together or alone, own more than 51percent of such entity’s outstanding equity capital or have decision-making powers at its shareholders’ meetings, are entitled to appoint a majority of its directors or are otherwise entitled to make fundamental decisions for such entity; (4) entities sharing managers, directors or principal officers; and (5) entities that control, are controlled by or are under common control of the debtor. White & Case 45
Page 1 and 2: Mexican Legal Framework of Business
Page 3 and 4: Mexican Legal Framework of Business
Page 5: Maria Teresa Fernández Labardini*
Page 8 and 9: PART IIISpecial Insolvencies ......
Page 10 and 11: 2 Consignment Consignación Coopera
Page 12 and 13: 4 Priority claim Crédito con privi
Page 15 and 16: Introduction All of a debtor’s as
Page 17 and 18: PART I Out-of-Court Restructuring O
Page 19 and 20: One of the risks that suppliers of
Page 21 and 22: Under either of the two approaches,
Page 23 and 24: . Prevention of Systemic Risk Anoth
Page 25 and 26: verification and admission of claim
Page 27 and 28: The issue is still divided between
Page 29 and 30: the debtor to arrive at a consensua
Page 31 and 32: v. Remuneration Specialists are ent
Page 33 and 34: after his death, if the creditors
Page 35 and 36: The above court precedent has two f
Page 37 and 38: 2. Voluntary Acceptance Small merch
Page 39 and 40: ii. Passive Estate Since a branch i
Page 41 and 42: For a debtor to be considered a hol
Page 43 and 44: ■■ Shutting down the enterprise
Page 45 and 46: ■■ The facts that motivate the
Page 47 and 48: filing such proofs of claim and ind
Page 49 and 50: 29 P. 161. i. Conservative Measures
Page 51: i. Disposition of Assets During con
Page 55 and 56: All assets acquired by the concubin
Page 57 and 58: ■■ ■■ ■■ ■■ ■■
Page 59 and 60: ■■ ■■ Claims for an uncerta
Page 61 and 62: chattel 35 ) unless its price is pa
Page 63 and 64: c. Extensions of Credit An extensio
Page 65 and 66: the negotiable instruments and the
Page 67 and 68: epayment or abandonment shall apply
Page 69 and 70: ■ ■ Swaps: transactions in whic
Page 71 and 72: If the subject matter of the constr
Page 73 and 74: Netting of obligations in light of
Page 75 and 76: they function generally determine f
Page 77 and 78: . The Reorganization Plan The purpo
Page 79 and 80: extend to guarantors or co-obligors
Page 81 and 82: the reorganization plan); (3) all s
Page 83 and 84: If a debtor does not successfully c
Page 85 and 86: ii. Timing Removal takes effect leg
Page 87 and 88: Claims by creditors operate at two
Page 89 and 90: ■■ ■■ ■■ ■■ ■■
Page 91 and 92: predictability in commercial relati
Page 93 and 94: The receiver may oppose the foreclo
Page 95 and 96: ■■ A foreign proceeding is a co
Page 97 and 98: Conditioning the application of cro
Page 99 and 100: f. Enabling and Access The rules of
Page 101 and 102: 30, 31, 32, 33, 34, 35, 36, 37, 38,
Page 103 and 104:
ii. Once Recognition Is Granted Onc
Page 105 and 106:
concerning the coordination of proc
Page 107 and 108:
20. Non-bank Financial Sector Firms
Page 109 and 110:
■■ ■■ If, however, somethin
Page 111 and 112:
Capitalization is an important indi
Page 113 and 114:
A bank would be declared en concurs
Page 115 and 116:
Bank restructuring through support
Page 117 and 118:
30. Purchase-and-Assumption A bank
Page 119 and 120:
causes for dissolution has occurred
Page 121 and 122:
[LCM 75]. The determination as to w
Page 123 and 124:
33. Securities Market 84 Holders of
Page 125 and 126:
A reorganization plan would be enfo
Page 127 and 128:
■■ ■■ All kinds of animals
Page 129 and 130:
Galindo (1957). GALINDO GARFIAS, Ig
Page 132:
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Mexican Legal Framework of Business Insolvency - White & Case

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