Mexican Legal Framework of Business Insolvency - White & Case

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46 In addition to the avoidance powers the Insolvency Law affords to insolvency courts, civil laws afford the common courts the power to declare void any transaction of the debtor in prejudice of a creditor through the exercise of an Actio Pauliana [CCF 2163]. Some of the differences between the Actio Pauliana and an insolvencyrelated avoidance include: In the case of an Actio Pauliana: The rights on which the plaintiff’s claim is based must precede in time the voidable transaction [CCF 2163]. The voidable transaction shall cause the debtor’s insolvency. Insolvency in this case means that the fair value of the assets of a debtor is less than the sum total of its debts (balance sheet test) [CCF 2163, 2166]. The transaction would be voided only if (1) it is a gratuitous transaction; or (2) not being gratuitous, both the debtor and its counterparty acted in bad faith. Bad faith consists of the knowledge of insolvency [CCF 2164-2166]. The transaction would only be void with respect to the creditor plaintiff [CCF 2175]. ■■ ■■ ■■ ■■ It is not clear whether an Actio Pauliana can be exercised during the pendency of a concurso. k. Musiana Presumption Marriage and concubinage are governed by civil state laws in Mexico. Most of these laws foresee two different types of patrimonial regimes applicable to marriage: (1) joint assets regime; and (2) separation of assets regime. All assets acquired under the joint assets regime in the two years prior to the beginning of the retroactive period are conclusively presumed to belong to the debtor and, therefore, are included in the estate [LCM 188].
All assets acquired by the concubine or the spouse under the separation of assets regime in the two years prior to the beginning of the retroactive period are rebuttably presumed to belong to the debtor and, therefore, are included in the estate [LCM 187]. l. Separation Any legitimate title-holder (not necessarily an owner) may separate individually identified assets in the debtor’s possession, provided such assets were not transferred to the debtor pursuant to a final and irrevocable legal title [LCM 70]. To be separated, an asset must: (1) be in the debtor’s possession; (2) be individually identified; and (3) may not have been transferred pursuant to a final and irrevocable legal title. i. In Debtor’s Possession An asset not in the debtor’s possession shall not be separated. Possession is a technical term that implies a de facto power over a certain asset and includes not only assets over which the debtor has physical possession, but also assets over which the debtor has primary possession (e.g., the debtor shall be deemed to be in possession of an asset even if the debtor has leased it out to a third person). ii. Individually Identified The identity of the asset is a necessary requisite for separation. Therefore, a fungible asset (e.g., money) cannot be separated unless it can be individually identified. In the case of accession (i.e., the case where one asset is naturally or artificially incorporated into another asset), the rules for identifying assets become casuistic and generally rely on who acquires title of the resulting asset. The determination of who acquires title requires applying rules governing the question on which is the principal asset and which is the accessory asset. If, pursuant to these rules, the debtor becomes the owner of the resulting asset, the debtor may have to indemnify the owner of the incorporated asset (which claim would have to be subject to the insolvency proceedings), but if a third person becomes the owner of the resulting asset, then such third person may separate it, indemnifying the debtor. The level of White & Case 47
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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 and 52: i. Disposition of Assets During con
Page 53: ■■ ■■ Granting of collatera
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
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20. Non-bank Financial Sector Firms
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■■ ■■ If, however, somethin
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Capitalization is an important indi
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A bank would be declared en concurs
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Bank restructuring through support
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30. Purchase-and-Assumption A bank
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causes for dissolution has occurred
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[LCM 75]. The determination as to w
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33. Securities Market 84 Holders of
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A reorganization plan would be enfo
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■■ ■■ All kinds of animals
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Galindo (1957). GALINDO GARFIAS, Ig
Page 132:
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Mexican Legal Framework of Business Insolvency - White & Case

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