|Elias Neocleous||Maria Kyriacou|
The new insolvency laws, which were extensively amended by the parliament in the course of its debate, have not been promulgated, and have not been published in final form. As a result there is considerable uncertainty concerning the details. We set out below our understanding of the principal changes, but this should not be regarded as definitive.
The Companies Law has been amended to introduce a process called examinership, which is akin to the UK administration process. It provides for the appointment of an insolvency practitioner as examiner, whose role is to develop restructuring proposals and agree them with stakeholders during a four-month moratorium in which the company is protected from creditor action.
The Companies Law has also been amended to make the following changes regarding liquidation: (i) for a company to be deemed unable to pay its debts the court must be satisfied that the net asset value is negative, taking into account potential and future liabilities; (ii) a liquidator can be appointed by the court as well as by existing procedures; (iii) when a winding-up order is made, the official receiver can be appointed as the permanent liquidator and not only on a provisional basis pending the appointment of another liquidator, as had previously been the case; (iv) a liquidator must be a licensed and regulated professional insolvency practitioner; (v) a court can make an order authorising the liquidator to dispose of assets subject to a charge if it is satisfied that this would be advantageous; and (vi) net proceeds from the sale of secured assets are used first to repay the secured debt and any surplus goes to unsecured creditors.
The court has the power to order a 95-day moratorium on enforcement action by creditors for the debtor to agree an arrangement (known as a personal repayment plan) with them. If approved by a 75% majority of creditors in value and the court, the arrangement will be binding on the debtor and all creditors. Dissenting creditors will have a right to be heard before the court.
The court can impose a rescheduling if the following conditions are satisfied: (i) aggregate liabilities are no more than €350,000 ($392,000); (ii) the primary residence of the individual was bought for less than €300,000 and is mortgaged in favour of at least one of the creditors; (iii) the total value of the remaining assets does not exceed €250,000; and, (iv) the inability to pay debts is due to a deterioration of the debtor's financial situation as a result of events outside his or her control, leading to a diminution of income of 25% or more.
Individuals with minimal assets and income (assets below €1,000 and monthly income below €2,000) may apply to the court via the government insolvency service for an order for debt relief of up to €25,000.
Discharge is automatic after three years on the condition that all the debtor's property, both movable and immovable, is sold and the proceeds are distributed to the creditors. There are new criminal sanctions against fraudulent alienation of assets prior to bankruptcy and non-disclosure of assets.
The liability of guarantors who are natural persons is limited to the shortfall of the value of the charged property below the secured liability, even if the guarantee provides for joint and several liability. Where the outstanding amount due to the creditor is less than the value of the mortgaged property, guarantors are discharged of their liabilities entirely. No proceedings can be commenced to enforce a guarantee within two years after the date of implementation of a personal repayment plan by the primary debtor.
Elias Neocleous and Maria Kyriacou