July 22, 2020
Eleven years ago (the Writ of declaration of insolvency is of July 23, 2009) the commercial court n. 1 of Malaga declared the one that supposes the largest creditors’ contest in the history of Andalusia leaving 5,000 families without money and without living place, but there is still hope.
The AIFOS creditors’ bankruptcy was declared by the Commercial Court number 1 of Malaga, published in the BOE on July 31, 2009, by which the company entered in bankruptcy with a “hole” of 120 million Euros.
The bankruptcy administration fell to the consultant Price Watherhouse Coopers in its Malaga delegation, plus a representative of the then Banco de Andalucía. (Now a day Banco Santander).
The main affected were the 5,000 families who anticipated their savings so that a house could be built for them. The contest also affected many providers and most of the banks that had then granted loans to the developer.
Equity situation (figures expressed in Euros)
Total Active Mass 780,951,791.00
à Bankruptcy credits
– Credits with special privilege 549.801.026,98
– Credits with general privilege 45.619.743,65
– Ordinary credits 187.854.561,81
– Subordinated loans 106.552.068,42
– Contingent credits No amount
à Credits against the mass 11.584.911,08
Total Passive Mass 901.412.311,94
Equity situation (Deficit)
Number of recognized credits: 6,234
First affected by the developer, before the declaration of the contest.
In October 2014, it was agreed to open the liquidation of the company (phase in which all assets must be sold and thereby pay creditors in their legal order). It is not yet finished.
The Malaga Prosecutor’s Office, Bankruptcy Administration and creditors requested the plea of bankruptcy and that its owners and administrators compensate the so-called “bankruptcy deficit” and that in turn other persons related to AIFOS, declared complicit, compensate the creditors.
1.- What is the “guilt” of a contest? Upon entering a company declared bankrupt in liquidation, the law requires the opening of the “qualification” phase of the bankruptcy, which may conclude with its declaration as “fortuitous” (derived from the evolution of the market) or “guilty” (which will be so if it is understood that the company or administrators have acted against the law, harming the company itself or its creditors).
2.- What are the consequences of “guilt”? If the contest is found guilty, the administrators and others affected by the contest’s qualification may be disqualified from acting as administrators of their own business and that of others, they will lose their own rights in the contest and they may be sentenced to pay for anything that cannot be covered with the assets of the company.
3.- What are the “accomplices”? They are those people or entities that without being administrators of the company have contributed to the generation or aggravation of the state of insolvency or its effects.
4.- What acts are attributed to them? The parties requesting guilt attribute to the administrators and accomplices the mismanagement of the company and successive attempts to “de-maritalize” the company for assignments in payment of real estate in exchange for alleged debts that are not proven.
5.- What is required against them? The prosecution adheres almost completely to what is requested by the Bankruptcy Administration and creditors, which requests that the owners and administrators compensate the creditors with what the bankruptcy itself cannot cover, with a minimum of 120.000.000,00 Euros, which is the deficit figure that already in 2015 was calculated could be higher. Disabling administrators is also requested. The accomplices are asked to reimburse the assets that improperly left the company and compensate the creditors for the damages.
The Supreme Courts and Provincial Courts offer hope to those affected.
Not everything is bad news, as the Supreme Court issued a judgment in 2015 that held financial institutions that received the unsupervised advances to be guaranteed, hundreds of those affected by AIFOS have been able to recover their savings through this route .
This same week the Provincial Court of Malaga has issued FOUR sentences, in matters defended by Lawyers from Ley 57 Abogados, which confirm this responsibility.
Deadline to claim:
Those affected are still in a period of claiming as this type of actions must begin before December, a period that has been extended until that month due to the declaration of the state of alarm.
The SOS Vivienda platform has made available to those affected by Aifos, and other developers, a free telephone number (900 64 92 90) in which they will be able to present their circumstances that allow assessing the viability of the appropriate claim before financial entities.
Here you can see the testimony of an affected person who recovered her money (press here)