This procedure is contemplated in the Commercial Bankruptcy Law, created with the main purpose of preventing the generalized breach of payment obligations by merchants from putting their operational continuity at risk, and that of other companies or merchants with whom they maintain a business relationship.
There are three stages in the Bankruptcy procedure.
1. The initial or declaration of commercial bankruptcy.
2. The conciliation, whose purpose is to achieve the preservation of the merchant’s company through the agreement that he signs with his recognized creditors; Y
3. Bankruptcy: whose purpose is the sale of the merchant’s company, its productive units or the assets that comprise it for payment to creditors.
Then, to be declared in commercial bankruptcy, several assumptions are required:
• The existence of a merchant
• The generalized non-compliance of that merchant in the payment of its obligations and,
• The plurality or multiplicity of creditors of the merchant.
The Commercial Bankruptcy can be requested by the merchant who has defaulted on his payment obligations with two or more different creditors; It can also be requested by any of the creditors, or by the Public Ministry, in the following cases:
• That past due obligations are at least 30 days past due.
• That they represent 35% or more of all the obligations in charge of the merchant on the date of presentation of the request.
• Not having assets (of which are listed below) to meet at least 80% of past due obligations.
The requirements of the lawsuit are the same that, in general terms, must contain the initial promotions of this class. However, these insolvency lawsuits vary in terms of the documents that the petitioner must attach to it, such as financial statements, a list of creditors and debtors, and inventory of their assets and real estate, among others.
The day after the judge admits the claim, he must send a copy of it to the Institute, ordering it to designate a visitor within the five days after receiving said communication, in the same way, within the same period, he must inform it to the fiscal authorities.
A visitor will be appointed and he will designate his assistants, the Institute must inform the judge and the designated visitor, the judge will issue an agreement and order that a visit to the merchant will be carried out, which will have the purpose that the visitor:
- Decide whether the merchant incurred a general default in the payment of the obligations to two or more creditors, as well as the expiration date of the credits related to those events, and
- Suggest to the judge the precautionary measures it deems necessary for the protection of the bankruptcy estate.
These may consist of the prohibition of making payments to the intervention of the box, among others.
Without the need for a citation, the judge will dictate within the five days following the expiration of the pleadings term, the corresponding sentence, considering what has been stated and proven and especially the opinion of the inspector.
The conciliation stage will have a duration of one hundred and eighty-five calendar days, counted from the day on which the last publication in the Official Gazette of the Federation of the commercial bankruptcy judgment is made, and a conciliator must be appointed who must seek that the merchant and his recognized creditors reach an agreement.
With the judgment of approval of the agreement, the commercial bankruptcy will be terminated, and the bankruptcy will be declared.
The merchant in commercial bankruptcy will be declared bankrupt when:
• The merchant himself requests it;
• The term for conciliation and its extensions if they have been granted, without submitting to the judge, for approval, an agreement in terms of the provisions of this Law, or;
• The conciliator requests the declaration of bankruptcy and the judge grants it.
Javier Estrada
Gloria Ponce de León & Hernández
