Details: Category: Obligations and Contracts

VOLUNTARY INSOLVENCY,

Insolvency Law- ACT NO. 1956

KINDS OF INSOLVENCY

1. Voluntary insolvency—an insolvent debtor owing debts exceeding in amount in the sum of P1000, may apply to be discharged from his debts and liabilities by petition to the RTC of the province or city in which he has resided for 6 months next preceding the filing of the petition

2. Involuntary insolvency—an adjudication of insolvency may be made by the petition of 3 or more creditors, residents of the Philippines, whose credits or demands accrued in the Philippines, for the amount of which credits or demands are in the aggregate of not less than P1000

STEPS IN VOLUNTARY INSOLVENCY

1.   Filing of the petition by the debtor praying for the declaration of insolvency
2.   Issuance of order of adjudication declaring the petitioner insolvent
3.   Publication and service of the order
4.   Meeting of the creditors to elect the assignee in insolvency

5.   Conveyance of the debtor’s property by the clerk of court to the assignee
6.   Liquidation of the debtor’s assets and payment of his debts
7.   Composition, if agreed upon
8.   Discharge of the debtor on his application, except a corporation
9.   Objection, if any, to the discharge
10. Appeal to the SC in certain cases

REQUISITES OF PETITION FOR VOLUNTARY INSOLVENCY THE PETITION WHICH MUST BE VERIFIED, IS TO BE FILED—

1. By an insolvent debtor

2. Owing debts exceeding in amount of the sum of P1000

3. In the RTC of the province or city in which he has resided for 6 months next preceding the filing of such petition

4.   Setting forth in his petition the following
a.    His place of residence
b.   The period of residence therein immediately prior to filing said petition
c.    His inability to pay all his debts in full
d.   His   willingness   to   surrender   all   his   property, estate, and effects not exempt from execution for
the benefit of creditors
e.    An application to be adjudged an insolvent

EFFECT OF FILING OF PETITION

 Once the petition is filed, it ipso facto takes away and deprives the debtor petitioner of the right to do or commit any act of preference as to creditors, pending the final adjudication

DOCUMENTS TO ACCOMPANY THE PETITION

1.   A verified schedule must contain—
a.    A full and true statement of all debts and liabilities of the insolvent debtor
b.   An outline of the facts giving rise or which might give   rise   to   a   cause   of   action   against   such insolvent debtor

2. A verified inventory which must contain—
a. An accurate description of all the personal and real property of the insolvent exempt or not from
execution including a statement as of its value, location and encumbrances thereon

b. An outline of the facts giving rise or which might give rise to a right of action in favor of the insolvent debtor

FILING OF SCHEDULE AND INVENTORY, JURISDICTIONAL

 On filing a petition for a discharge from his debts, an insolvent is required to present a verified schedule of liabilities and a verified inventory of his properties
 The presentation of such documents stating the amount of each creditor’s claim is a jurisdictional requirement, without the proper performance of which his subsequent discharge will be of no avail

EFFECT OF ERRORS IN DESCRIPTION OR OMISSION OF PROPERTY IN INVENTORY

     That the property is erroneously or ambiguously described in the insolvent’s inventory will not affect the title of purchasers in the insolvency proceedings. All the property of the insolvent passes to his assignee and is administered in the insolvency proceedings regardless of errors in the insolvency.
     If the insolvent omits property from his inventory, through either mistake or fraud, it is the duty of the assignee to have the inventory amended so as to include it and take possession and administer it
     Even property exempt from execution must be included in order to preclude possible fraudulent omissions under the pretext that such property is exempt.    But where the petitioner didn’t attach an inventory to its petition for insolvency, alleging under oath that it had no property to inventory, the lack of inventory was held not fatal to the petition because it was assumed, until proven otherwise, that the petitioner was stating the truth.

EFFECT OF COURT ORDER DECLARING DEBTOR INSOLVENT

1.   All the assets of the debtor not exempt from execution are taken possession of by the sheriff until the appointment of a receiver or assignee
2.   The payment to the debtor of any debts due to him and the delivery to the debtor or to any person for him of any property belonging to him, and the transfer   of any property to him are forbidden
3.   All civil proceedings pending against the insolvent debtor shall be stayed
4.   Mortgages   or   pledges,   attachments   or executions   on property of the debtor duly recorded and not dissolved are not, however, affected by the order

IF YOU ARE THE DEBTOR, WHY WOULD YOU FILE FOR INSOLVENCY?

     The debtor will get a discharge
      A corporation doesn’t get a discharge
     The partners in a partnership will get a discharge

Insolvency Law

ACT NO. 1956

SECTION 14.     Application. — An insolvent debtor, owing debts exceeding in amount the sum of one thousand pesos, may apply to be discharged from his debts and liabilities by petition to the Court of First Instance of province or city in which he has resided for six months next preceding the filing of such petition. In his petition he shall set forth his of residence, the period of his residence therein immediately prior to filing said petition, his inability to pay all his debts in full, his willingness to surrender all his property, estate, and effects not exempt from execution for the benefit of his creditors, and an application to be adjudged an insolvent.
He shall annex to his petition a schedule and inventory in the form herein-after provided. The filing of such petition shall be an act of insolvency.

SECTION 15.     Statement of debts and liabilities. — Said schedule must contain a full and true statement of all his debts and liabilities, together with a list of all those to
whom, to the best of his knowledge and belief, said debts or liabilities are due, the place of residence of his creditors and the sum due each the nature of the indebtedness or liability    and    whether    founded    on    written    security, obligation,   contract   or   otherwise,   the   true   cause   and consideration thereof, the time and place when and where
such indebtedness or liability accrued, a declaration of any existing pledge, lien, mortgage, judgment, or other security for the payment of the debt or liability, and an outline of the
facts giving rise or which might give rise to a cause of action against such insolvent          debtor.

SECTION 16.    Description of real and personal property. — Said inventory must contain, besides the creditors, an accurate description of all the real and personal property,
estate,   and   effects   of   the   petitioner,   including   his homestead, if any, together with a statement of the value of each item of said property, estate, and effects and its
location, and a statement of the encumbrances thereon. All property exempt by law from execution 2 shall be set out in said inventory with a statement of its valuation, location,
and the encumbrances thereon, if any. The inventory shall contain an outline of the facts giving rise, or which might give rise, to a right of action in favor of the insolvent
debtor.

SECTION   17.      Verification,   form   of   .   —   The   petition, schedule, and inventory must be verified by the affidavit of the petitioner, annexed thereto, and shall be in form
substantially    as    follows:    "I,    _______________.,    do solemnly   swear   that   the   schedule   and   inventory   now delivered by me contain a full, correct, and true discovery of
all my debts and liabilities and of all goods, effects, estate, and property of whatever kind or class to me in any way belonging. The inventory also contains a full, true and
correct statement of all debts owing or due to me, or to any person or persons in trust for me and of all securities and contracts whereby any money may hereafter become due or
payable to me or by or through which any benefit or advantage whatever may accrue to me or to my use, or to any other person or persons in trust for me. The schedule
contains a clear outline of the facts giving rise, or which might give rise, to a cause of action against me, and the inventory contains an outline of the facts giving rise, or
which might give rise, to any cause of action in my favor. I had   no   lands,   money,   stock,   or   estate,   reversion,   or expectancy, or property of any kind, except that set forth in
said inventory. I have no instance created or acknowledged a debt for a greater sum than I honestly and truly owe. I have not, directly or indirectly, concealed, fraudulently sold,
or otherwise fraudulently disposed of, any part of my real or personal property, estate, effects, or rights of action, and I have not in any way compounded with any of my creditors
in order to secure such creditors, or to receive or to accept any profit or advantage therefrom, or to defraud or deceive in any manner any creditor to whom I am indebted. So help
me God."

SECTION 18.    Order of court declaring petitioner insolvent; Publication notice. — Upon receiving and filing said petition, schedule, and inventory, the court, or the judge thereof in vacation, shall make an order declaring the petitioner insolvent, and directing the sheriff of the province or city in which the petition is filed to take possession of, and safely keep, until the appointment of a receiver or assignee, all the deeds, vouchers, books of account, papers, notes, bonds, bills, and securities of the debtor, and all his real and personal property, estate, and effects, except such as may be by law exempt from execution. 3 Said order shall further forbid the payment to the debtor of any debts due to him and the delivery to the debtor, or to any person for him, and the transfer of any property by him, and shall further appoint a time and place for a meeting of the creditors to choose an assignee of the estate. Said order shall designate a   newspaper   of   general   circulation   published   in   the province or city in which the petition is filed, if there be one, and if there be none, in a newspaper which, in the opinion of the judge, will best give notice to the creditors of
the said insolvent, and in the newspaper so designated said order shall be published 4 as often as may be prescribed by the court or the judge The time appointed for the election of
an assignee shall not be less than two, nor more than eight, weeks from the date of the order of adjudication. Upon the granting of said order all civil proceedings pending against said   insolvent   shall   be   stayed.   When   a   receiver   is appointed, or an assignee chosen, as provided in this Act, the sheriff shall thereupon deliver to such receiver or assignee chosen, as provided in this Act, the sheriff shall thereupon deliver to such receiver or assignee, as the case may be, all the property, assets, and belongings of the insolvent which have come into his possession, and he shall be allowed and paid as compensation for his services the same expenses and fees as would by law be collectible if the property had been levied upon and safely kept under attachment.

SECTION 19.    Publication of order. — A copy of said order shall immediately be published 5 by the clerk of said court, in the newspaper designated therein, for the number of
times and as prescribed by the court or the judge thereof, and a copy of said order shall be delivered personally or sent by the clerk forthwith by registered mail, postage prepaid, to all creditors named in the schedule. There shall be deposited, in addition to twenty-four pesos, which shall be received by the clerk on commencing such proceedings, a sum of money sufficient to defray the expense of the ublication ordered by the court, necessary postage, and ten centavos for each copy, to be delivered personally or mailed to the creditors, which last-named sum is hereby constituted the legal fee of the clerk for the personal delivery or mailing required by this section.

VOLUNTARY INSOLVENCY, Insolvency Law- ACT NO. 1956