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| Attorney Carla Valerio |
phase of the claim is always complex.
First you should make a prior analysis of the situation to check the balance sheet and what the best action applicable.
Stragiudiziale consists of sending a notice and preliminary study of the solvency of the debtor to determine if and how it is worth promoting legal action if the failure persists.
after this type of analysis usually involves a number of benefits that allow you to define the strategy. One of the great advantages of this phase is the possibility of obtaining a confession by the debtor of the debt, including through unfulfilled repayment plan, which is enforceable.
Judicial : Case confirming that the debtor is insolvent, there are several solutions to choose from based on the analysis Prior made, both legal analysis (documentation,
contracts, etc.). that on the balance sheet of the debtor company.
• How precautionary attachment : To be used especially in the case of title and in other cases of possible depletion of the debtor's assets, However, it is difficult to apply with foreign creditors because of evidence of the "danger in delay" or the fact that the creditor is dissipating assets.
However, it has a significant effect in the case of title in a machine instrumental to the smooth functioning of the production chain of the debtor. ; The threat of removal of the machine normally encourages the debtor to pay as soon as possible.
• injunction : is a form of delivery (process monitor) to obtain judicial certification of the claim if it is in possession of only bills and ordered the debtor judicially the payment of his expired. This process may be subject to any opposition, which lets pass the process to ordinary procedure, with a requirement to build up in court.
• Enforcement: It is a direct application of the debtor's assets through foreclosures, which can only be based on an "enforcement" valid (check, bill , judgments, settlement, admission of the debt).
Although this procedure may be subject to the opposition which, however, does not suspend foreclosures (only in case of security or alleged falsification of documents) which remain valid (although it shall not be loro vendita finale) sino al transito in giudicato della decisione finale.
• Fallimento : In Portogallo può essere instaurato indipendentemente dall'importo del credito e basato anche solo su fatture. Tuttavia è consigliabile avere sempre una sentenza/Decreto Ingiuntivo di certificazione del credito come base legittimante la richiesta di fallimento, caso contrario si corre il rischio di discutere la validità del credito nel fallimento, il quale, essendo un procedimento sommario ed urgente non è indicato. Ciò considered suggest using the direct failure (without ruling on certification) only in special cases and after balancing the risks.
fact they mature under certain conditions it may be worthwhile to proceed directly with a bankruptcy petition in order to obtain a transaction with partial payment of the remaining credit repayment plan with guaranteed by the directors of the debtor.
is also important to remember that in Portugal, the applicant creditor's bankruptcy bonus, equivalent to 20% of its claim to be privileged to pass on the movable mass insolvent.
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