25 February 2014
Sánchez-Cervera Abogados represents a defendant charged with an alleged offence of concealment of assets, the case being dismissed as the Madrid Provincial Court understood that the sale of the family home was not carried out to evade creditors, but to pay off the outstanding mortgage with the bank, and that there was no intention to hinder the seizure proceedings initiated by the creditors.
The Order ratifies the jurisprudence on the non-existence of the offence of asset stripping when an asset is sold to pay one creditor in preference to another, even if the civil rules on the priority of claims are not respected:
‘Therefore, as indicated in STS 1471/2004, of 15 December, ‘this crime is not committed when there is no subtraction or concealment of the debtor’s assets with the aim of preventing the creditor from exercising his right. And such a manoeuvre of theft or concealment does not occur when the conduct of the active subject consists of paying other credits other than the one for which criminal proceedings are being pursued, even if the creditor who is prevented from collecting has preference over the creditor who has been paid, a preference derived from the application of the civil or commercial rules governing the priority of credits (arts. 1921 et seq. cc. and concordant provisions). The offence of taking possession of property does not take into account these rules of a private nature’.
The Madrid Provincial Court upheld the appeal and dismissed the case as it was established that the purchase and sale of the family home was carried out to settle a previous debt with the bank, and that the defendants did not make any profit from the transaction.
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