English Translated Copy
Jurado tie tngtés

  

JUAN BEL ¿»Kimi TAAÉÉS
intérprete

¡’acta sentían,  29 - 23636 ixAoniï)
711.91 34s 4a 43 -Fax:91 35...
. ¿"25 ïfioïlíï: 

  
 

SECOND:  the territorial jurisdiction to process the insolvency is incttmhent on
the ntcrcantile c...
u. .-"
l

  

“Í”? 

"through u document lodged with the Court Secrctaryï Office on the l6"‘ Ntay
2006. the court Adxtocat...
to correct the pctition in the document svithin five days as FORUM FlI. .A‘Í‘i'-1i. .l(‘() SA. 
svas not part of this proce...
___. ._. ... _.. ... _._. ..___. _.. -
n. 
{a

error having being corrected.  the appearance was accepted by a direction o...
The representative ot‘ Mr.  Alberto Grande Blázquez and others requested the
cluritication of this court order.  which was...
de la Administración Yïibuturici (hereinaftcr.  ¡XEATL which was accepted through a
direction oFthc coun datcd the 14"‘ Ju...
(L‘AI. ,I{: ÉRO MOLINA,  ANTONIO CASTAÑO IINOCO,  MARIA DEL CARA/ IBM
CASTRO ISNNRIQLII-l,  JOSÉ MANUEL DE LA BASTIDA LEVA...
THIRTEENTH:  Through a fax dated the ISm June 2006. the court-appoíntcd
administrator Ibrwardcd the notification of the del...
cftlLtïBRA-S RAMlNO and MS MARÍA DEL CARMEN MORAGA hlÉNDtiz for the
opening of itisolvency proceedings.  which was joined ...
‘lhrouglt a document that was lodged with the Court Secretary-k Offiee on the
15"‘ Juno zona.  the court Advooate MR MARIAN...
EIGHTEENTH:  ‘Through a document lodgcd with the Court Secrctaryï Oñicc
un the 2!“ May 2006, the court Advocalc MR MANUEL ...
TWENTIETII:  Through a document lodgcd with the Court Secretaryï:  Office
on the 22'” June 2006. the court Advocate MR MAR...
dated the 29”’ June 2006. although the interested party was required to correct certain
details. 

‘through a document lod...
already requested from Central Magistratcs Court No.  l.  in the Mit dated the 3'" July
2006.

TWÏNTYZSEGOND:  Through a d...
procudural capacity of AUSBANC CONSUMO and AUSBANC EhdPRFIS. -’»S.  which
shall be hcretmdcr decided. 

Nottvithstanding t...
“The doblar muy [X1842 ¡tx oppasilion o)!  (¡te inexíslence (¿fthejbct on which the

requtas-t is bancos] ur on that,  eve...
p“. .., .._i; -.u_. ,__i__fi_______q
Juan ost cara:  rxirstés
¡mártires Jurado de i:1;_¡l. ¿_í_>«
Padre Üamtán,  29.23233 a...
the opposition is an exclusive power of the debtor.  This is clearly provided in Art.  l 5 of’
the lnsolvency Law and HKCW...
Before:  anything else,  it must be indicatcd that the adoptcd solution is u
coitscquence of the mandale directly addresse...
Professor Velázquez Martin.  mentioned above,  states that “the administrator
¡hay take part in legal proccedittgs cxercis...
For the purposes of correctly understanding the aforcmcntioned order,  it must bc
clarified that Central Mngistrates Court ...
¿recordarme t-vith the Constitution.  the only viable alternative for the (Ïourt is to raisc a
question nl" the ttncnnstít...
which is the elosest to the legal situation under consideratíon.  This regulation can bc
none other than the insolvency re...
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Exhibit 17

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Anexos declaración de Greg Manning ante el Congreso de Estados Unidos, por los ataques contra la española Afinsa y su filial norteamericana en el NASDAQ, Escala

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Exhibit 17

  1. 1. English Translated Copy
  2. 2. Jurado tie tngtés JUAN BEL ¿»Kimi TAAÉÉS intérprete ¡’acta sentían, 29 - 23636 ixAoniï) 711.91 34s 4a 43 -Fax:91 359 99 73 MERCANTILE COURT No 6 MADRID C/ GRAN VÍA, no. s2, 4" PLANTA PROCl-LDURE: ORDINARY INSOLVENCY PROCEEDlNGS 208/2006 COURT ORDER ln the city of Madrid. on 14 July 2006. F ACTUAL BACKGROUND E1351: Through the document‘ lodgcd with the Court Secretary/ k Office on the 10"‘ May 2006, the Court Advocate MR. EVENCIO CONDE DE GREGORIO, representing MR. ALBERTO GRANDE BLAZQUEZ and the minors MASTER ALVARO GRANDE ROCA, MASTER GONZALO GRANDE ROCA and MISS JIMENA GRANDE ROCA filed an application for the opening of compulsory insolvency procecdings for AFINSA BIENES ’I‘ANGIBLES SA. (hereínañer AFlNSA). Through the document lodged with the Court Secretary’s Office on the 11"‘ May 2006; the Court Advocate MR. ANTONIO RAFAEL RODRIGUEZ MUÑOZ, representing MS PILAR GARCÉS FERNÁNDEZ filed aii application for the opening of compulsory insolvcncy proceedings for AFlNSA. Both applications were materially lodged with the Court on the l2"‘ May 2006, although due to a material error, on the second of the abovementioned applications there appears u stamp for the 13"‘ May, an error which is evldenced by the circumstzince that the I3"‘ May was a Saturday, being thus that no dossiers are distributed among the Courts on Saturdays as it is a non working day. By a direction of the court dated 12"‘ May 2006, the appearance before the Court of the ‘lirst applicant was accepted, that being the first applicant indicated above. giving rise to proceedings no 208/06. In said direction of the court it was agreed to join together with proceedings no 208m6 the second of the applications, registered under number 21 1/06.
  3. 3. . ¿"25 ïfioïlíï: SECOND: the territorial jurisdiction to process the insolvency is incttmhent on the ntcrcantile couns in Madrid, as provided in Art". 10.1 of the lnsttlvcncy Law; as it is started that the debtor has there the centre of its main intercsts as wcll as its registered oflïce located in calle Génova no. 26 in htadrid. lt is stalecl in the first of the applications filed that the cxtemnl event which justilics the application is the general discontinuance of payments. provided in An. 2.4.1“ ofthe lttsolvency Law. At thc ¡touring a new event was added, the conccalmcnt ol‘ asscts. provided in Art. 2.4.3° of the lnsolvency Law as it is deduced from the provisions of Art. 2.4. ln evidence ot‘ this fact. the Court Order dated 12"’ May 2006 ¡nada by Central Magistrates Court no. l and which is found on the CD sent by said Court, is invokcd. h: By Court Order datcd the 16m May 2006. the leave to procced was awardodt as was the leave to gather a report from the Public Prosecutofis Office and certain documentation from Central Magistrates Court no. l . Through a document lodged with the Court Secretarfs Office on the 25”’ lvtay and in the court on the l“ June, the representative of Mr. Alberto Grande Blázquez and others requested the clarification of this court order. By a direction of the: court of that day. it was requested that the notification of copies be carried out, which was corrected in a document filed at the Court Secretary‘s Office on the 13"‘ June, being lodged with the court on the l9"‘ June. By court order dated 20"’ I une, the clarification was rcjectod. In a document lodged with the Court Secretaryït Office on the 30'" June 2006. an appcal for reversal against the Court Order dated lo“ May 2006 was filed, which was given leave to proceed through the direction of the court datcd the lO"‘ July 2006. The representative of Ms Pilar Garcés Femández also requested clarification. in a document lodgod with the Court Secretaryïa Office on the 26"‘ May and at the court on the 2"“ June of 2006, which was rejected by the Court Order dated the 5"‘ June 2005. Through a document lodged with the Court Secrctaryï Office on the 12"’ May 2006. the Court Advocate MR. LUIS SANTÍAS Y VlADA filed an application on bchall’ of MS CARMEN SORIANO CARRERAS for the opening of insolvcncy procecdings for AFINSA. which was jolncd by a direction of the court rlntcd the 18"‘ May 2006. l Jy;
  4. 4. u. .-" l “Í”? "through u document lodged with the Court Secrctaryï Office on the l6"‘ Ntay 2006. the court Adxtocate MR. ANTONIO IVÍARÏÏNÏZZ DE LA (TASA RODRÍGUEZ. filed zm application on behalf of MR. MIGUEL CiONZIÑïJEZ BASTÓN. MS ïvlARiA DEL N1ARÏl'(. )h1.5«. S JIMÉNEZ. MR FRANCISCO GALLEGO DE ¡MARCOS and MR JLSAN h/ MNUI-Ii. GUTIERREZ MANCEBO. for the opening of insolvcncy procecdings for At-‘INSA. which was joincd by a direction of the court dated lhc 24"‘ May 2006. Through a document lodged with the Court Secretarfs Oflicc on the 17”‘ May 2006. the court Advocatc MR. EVENC lO CONDE DE GREGORIO 4 filed an application on behalf of MS ALEJANDRA CABRERA ROCA. MR IGNACIO CABRERA ROCA, MR JORGE ANTON lO RUBÍN IGLESIAS and MS NÍARÍÁ i-ÉNMA REY BRAÑA. for the opening of insolvency proccedings for AFINSA. which tras joined by a direction of the court dated the 25"’ hiay 2006. That direction of the court was appealcd against by the representative of Ms Pilar Garcés in a document filed at the Court Secrctary's Office on the 8"‘ June 2006. Leave was given for the appeal in a direction of the court dated the 19"‘ May and the appeal is ¡vending a decision. F OURTH: Through a document Iodgcd with the Court Secrerarys Office on the 17"’ May 2006 and in the court on the 24'“ May 2006. the court-appointcd administrator of AFINSA uppcarcd before the Court communicating the appcintment carried out by Central Magistrates Court no. l in its Pre-Trial Proceedings 134/2006, By a direction of the court dated the 25°“ May 2006. the‘ said court-appointed administrator was sutnmoned so that he could contest, where appropriate, the application for ¡nsolvency pmcccdingts. "Through a court appearance dated the l“ June 2006, un extension ot’ the time - limit was requested and it was grnnted in a direction of the court datcd the i“ June 2006. This direction of the court tras appealed against by the representative oi‘ Mr, Alberto Grande Blázquez and others in tr document filed with the Court Secretaria Office on the 9"‘ June 2006. Leave was given to appcul in the direction of the court dated the l9"' May and the appcal is pending a decision. The representative of Pilar Garcés Fernández, in a doctrmcnt filed at the Court Secrctarys Office on the 14"‘ June. also appcalod against the same direction oi‘ the court dalcd the t“ June. ln a direction ot‘ the court on the 22”" J une, that party was requested
  5. 5. to correct the pctition in the document svithin five days as FORUM FlI. .A‘Í‘i'-1i. .l(‘() SA. svas not part of this procedure. On the 19"‘ May 2006, Central h/ lagistrates Court no. 1 sent the court (irders made by said court in relation to prccautionary measures regarding estate against AFINSA. which tivas attached by a direction of the court dated the 26m May 2006. FlFTH: Through a document iodgcd with the Court Secrctargfs (Liflice on the 19*" May 2006. the court Advocate MS MARÍA JOSÉ RODRIGUEZ. 11511151M). appeared as an interested party in the procecdings on behall" of AUSBANC EhAPRESAS Said appearance was accepted in the proceedings datcd the 24"‘ May 200o. Through a document lodged with the Court Secretarg/ ‘s Oflice on the 23"’ May 2006, the court Advocate MR MARIANO CRISTOBAL LÓPEZ filed an appiication for the opening of insolvency proceedings for AFINSA on behalf of MR. MANUEL FERNÁNDEZ LOPEZ, which was 30mm by a direction ofthe court dated the 30* May 2006. Through a document lodged with the Court Secretarías Office on the 21“ June 2006. the error relating to the credit situation was corrected and thus it was considered in the direction of the court dated 30”‘ June 2006. _ Ütrough a document lodged with the Court Secretarfs Office on the 25"‘ May 2006, the court Advocatc WS NATALIA MARTÍN DE VIDALES LLORENTE filed an application for the opening of insolvency procecditigs for AFINSA on behalt‘ of IGNACIO SANTOS RUBIANO LISO and MR FRANCISCO JOSÉ CULBBRAS SÁNÁBRÍÁ, which vias joined by a direction of the court dated 30"‘ May 2006. (iranled the corresponding power of attomey for legal action conferred before ‘the Court Secretary, it was considered that these appeared as interested parties in the direction of the court datcd the 9"‘ June 2006Ïïhis direction of the court was appealed against by the atbrementioxted representative in a document filed al the Court Secretaryc Ofïice on the 12"‘ June 2006. Leave was given to appeal in the direction of the court of 19"" May and the appeal ¡s pcnding a decision. Through a document that was Iodged with the Court Secretarys Office on the 25'“ May 2006, the court Advocate MS LUCÍA VÁZQUEZ PIMENTAI, SÁNCHEZ requested to appear as an interested party in the proceedings on behalf ol‘ the ASOCIACIÓN GALLEGA DE INVERSORES EN BIENES 'l“ANG[Bl. lZ-1S as a private prosccution. whiclt was reiectcrd by a direction of the court dated the i“ June: 2006. The
  6. 6. ___. ._. ... _.. ... _._. ..___. _.. - n. {a error having being corrected. the appearance was accepted by a direction of the court datcd the M“ Juno 2006. 5131!! : 'I‘hrough a document that was iodgcd with the Court Secretary} Ofïicc on the 29"‘ May 2006 and in the Coun on the 2'“ June, the representative of Piiar Garcés requested access to the evidence gathered before the trial, which was rejected in a Court Order datcd the s“‘ Juno 2006. ‘Through a document that was lodged with the Court Sccretary’s Oflice on the 31*‘ May 2006. the court Advocate MR MANUEL LANCHARES PERLADO requested on behatfof‘ MR JUAN FRANCISCO RAMOS ZAPATERO. MR JOSÉ ANTONIO ZAMBRANO ZAMBRANO, MS MARÍA DEL CARMEN BARROSO REBOLLEDO. MR JOSÉ GONZÁLEZ GONZÁLEZ and MS FRANCISCA PARRADO ESTEPA to appear as an interested party in the procecdings, which was accepted in a direction of the court dated the 6"‘ June 2006. "Ihrough a document iodged with the Court Secretary"s Office on the 3 l“ hriay 2005 . the representative of Mr. Alberto Grande Blázquez and others requested that a procedurai error of failing to indicate the expiry dato of the credit and the current situation ofthc sume in accordancc with the notification in the court order datcd the to” May 2006 be hold as corrector}, and this was agreed by the procccdings dated the 7"‘ EIGHTH: Through a document that was lodged on the 8"‘ June 2006, the J une 2006. '-'* 43 _S_EVENTH: Through a document datcd the l“ June 2006, the court-appointed — administrator of AF ¡N SA stated his non opposition to the insolvcncy proceedings, the ".3 {i} Í . , Court Order of 5"‘ June 2006 made by Central Magistratcs Court no. I approving said CY. ‘ i, N‘ _: ¡ f} procedural position being attached, although the practice of certain pmcedural steps was {t} agrccd. é o. tï E KEN representativo of Ms. Pilar Garcés completed her request for precautionary measures. 'l'hrough a court order datcd 9"‘ June 2006, the practice of certain precautionary measures was rcjcctcd and certain documentation was mquosted from the court- apptvinted adtninistrator and from Central Magistmta»: Court no I. .
  7. 7. The representative ot‘ Mr. Alberto Grande Blázquez and others requested the cluritication of this court order. which was rejected by another court order duted the 26"‘ June 2006. fimjfi: ‘Fhrough a document lodged with the Court Secretaryïs Oñïce on the 2"“ June 2006. "the court Advocate MR MANUEL SÁNCHEZ. PUELLBS GONZÁLEZ, CARVAJAL requested on behalfof MR IGNAClO FREIRE RODRIGUEZ, MR JOSÉ rviARiA FERNÁNDEZ GONZÁLEZ, Ms CARMEN MARTÍNEZ PÉREZ, MR MANUEL BERMÚDEZ DorvuNGm-zz, MR ALBERTO JOSÉ FILITER. GARCÍA. Ms htARíA SOL RODRÍGUEZ. MARTÍNEZ. MR LUIS ESCALERA RUIZ. MR RAFAEL UBER PORTERO, MR RUFINO MONTAÑO ALVAREZ. MR MANUEL ESPEJO ALVAREZ. and MS DOLORES JIMÉNEZ FlLTER to appear as an interested party in the proceedíngs. which was accepted by a direction of the court dated the 12"’ June 2006. ‘Through a document lodged with the Court Secretaryï: Otiïce on the 31“ May 2006. the court Advocate MR ARGIMIRO VÁZQUEZ GIJILLEN fited an appiícation on behalf of MS MARTA PÉREZ 000m0 GARCÍA for the opening of insolvency proceedíngs for AFINSA. requested to appear as an interested party in the proceedings, even though, ¡n a direction of the court dated 12"‘ June 2006 he was requested to prove accreditation of his interest in appearing as a party“ ‘Through a document lodged with the Court Secretary? ’ Office on the 7"’ June 2006. ‘the court Advocate MR MANUEL LANCHARILS PERLADO requested on ‘.33 r hchalfot‘ MR PEDRO LASIERRA BIELA, MS ARACELI ALASTRUE zANouNno, É Ms ARACELI LASIERRA ALASTRUE, MR GREGORIO coLLAoo orar, MONTE. MS ESPERANZA MARTÍN JIMÉNEZ, Ms MARÍA PILAR MARTÍNEZ)’. ABRALDES, MR ANTONIO PEINAZO PLEGUEZUELOS, MS MARÍA om. a CARMEN NOTARIO CANALES, MR JOSÉ OLIVEIRA ASSALIT. MR Jl-JSIJS NOGALES SABORIDO. MS CARMEN ROSA ORDÓÑEZ SIERRA, MR EDUARDO SANZ ESCRIBANO and MS MARÍA DEL CARMEN DÍAZ RÚiZ to appear as au interested party in the proceedings, which was accepted by the direction ol" the court dated the 14"‘ June 2006. ‘Through a document that was lodged with the Court Secretarys Office on the 7"‘ June 2006, the State Counse! requested to appear as an interested party ¡n the proceedíngs on behalf of the State Agency for "Fax Administration. the Agencia Eslalul ¡UAM “¿EL ¿A
  8. 8. de la Administración Yïibuturici (hereinaftcr. ¡XEATL which was accepted through a direction oFthc coun datcd the 14"‘ June 2006. Through a document filed with the Court Secretary} Office on the 5"‘ Juno 200o, the court Advocate MS MARÍA JOSÉ RODRIGUEZ TLÏIJEIRO requested on bchalf of MS LAURA MIGUEL RIVERA, MR JAVHÉR PORTAI, 'l‘lilJEílRO. MS (TECILIA PORTAL MIGUEL, JUANA MARTÍN CUBERO. MR DOMlNGO ORGANISTA MARTÍN. MS MARÍA ALEGRÍA GÓMEZ ROBLES, MR DOMINGO GONZÁLEZ lVtJLKÏN, MS JULIA MARÍA GONZÁLISZ l-iE-RRLRO and MR LUlS PORTAL TElJElRO to appear as an interested party in the proceedings, tesolving to i Summon the interested parties to grant power of attomcy for legal action before the Court Secretary by the direction of the court dated the 14"‘ Juno 2006. TENTH: Through a fax received on the 14”’ June 2006. the court-appointed administrator requested instructions "from the Court in relation to the persons who should collect the Citation for AFlNSA. ln a direction of the court ot‘ that date, it tvas agreed that the Citation be received by the former dircctors ot‘ AHNSA or by someone on their bchall‘. Against this direction of the court, the representative of Ms. Pilar Garcés Fernández filed an appeal through a document lodgod with the Court Secretary} Otïice on the 26"‘ June 2006, which was given leave to proceed in the direction ot" the court datod the 30"‘ June 200o. ' ln addition an appeal has been filed by the representative of Alberto Grande Blázquez and others, through a document filed at the Court Secretaryïs Office on the 26”‘ June 2006 and accepted by a direction Ofthe court datcd the 10"‘ July 2006. ' redada: ELEVENTH: Through a document received at the Court Socretaryk Office on the 12"‘ June 2006, the Public Prosccutor conducted the notification authoriscd in the direction of the court daled the ió“ May 2006, in the respect ofcottsidcring that ¡n the court pmcccdings seen in Central Magistrates Court no. l, there was evidence of JUMÁÑÑEÉL“ÉÁ. Ï<ÉÉÏ¿"ÏMRM intérprete Ju insolvcncy. TWELFTH: ihrough a document lodged with the Court Secretarias Ctfiice on the 7"’ June 2006, the court Advocate MS NATALIA MARTÍN DE VIDALES LORENTE filed an application on bchalf of MS LU lSA ARROYO ASENSK), LUISA
  9. 9. (L‘AI. ,I{: ÉRO MOLINA, ANTONIO CASTAÑO IINOCO, MARIA DEL CARA/ IBM CASTRO ISNNRIQLII-l, JOSÉ MANUEL DE LA BASTIDA LEVA. JAVIER DIAZ. IIODIGLJEZ, MARIA DORADO MIEDO, PEDRO GIL FUENTES, FERNANDO GÓMEZ 312m2, SANTIAGO MÁRIÑAS ORTIZ. BLANCA MOLINA DORADO. ¡‘vIANIIELA MOLINA DORADO, MARÍA ANGELES MOLINA DORADO. ROBERTO PAREDES FERNÁNDEZ, MARTÍN SORIANO CASTILLA, DIEGO ZAMORA GÓMEZ and JUAN JOSÉ: ZAMORA GOMEZ for the opening of insolvcncy proceedings. which wasjoined by a direction of the court dnted the IS” June 2006. ln attother direction of the court dated the IO“ July 2006. the previous direction ol’ the court was corrected in the respect of including as applicants MS MANU ISLA and BLANCA MOLINA DORADO. Through a document that was Iodged with the Court Sccretartfs Office on the 7"’ June 2006. the court Advocatc MS NATALIA MARÏIN DE VIDALES LORENTI-i filed an application on behaIf of MS LUISA ARROYO ASENSIO, LUISA CALERO MOLINA, ANTONIO CASTAÑO TINOCO, MARÍA DEL CARMEN CASTRO ENNRIQLIIÉ, JOSÉ MANUEL DE. LA BASTIDA LEVA, JAVIER DÍAZ RODIGUEZ, MARÍA DORADO AGUDO, PEDRO (su, FUENTES, FERNÁNDO GÓMEZ Burma. SANTIAGO MARINAS ORTIZ, BLANCA MOLINA DORADO. MANUELA MOLINA DORADO, MARIA ANGELES MOLINA DORADO, ROBERTO PAREDES FERNÁNDEZ. MARTIN SORIANO CASTILLA, DIEGO ZAMORA GÓMEZ and JUAN JOSÉ ZAMORA GÓMEZ for the opening or insolvency proceedings, which wusjoined by a direction of the court dated the IS“ June 2006. Through a document Iodged with the Court Secretary‘s Office on the 9"‘ June 2006, the court Advocate MR. MARIANO CRISTOBAL LÓPEZ filed an application on behalfof JULIO SAN JOSÉ VELAZQUEZ and of MS ANA MAKíAxsnKRANo TOLtïDANO for the opening of insolvency proeeedings. which was joined by a direction of the court dated the IS“ June 2006. Through a document Iodged with the Court Secretarfs Ofñce on the 9"‘ June 2006. the court Advocate MR. MARIANO CRISTOBAL LÓPEZ filed an application on behalf of MR ELIAS URDIALES GONZÁLEZ. MS JULIO SANTILLANA (¡ARCÍA for the opening of insolvency proccedings. which was joined by a direction of the court datcd the IS” June 2006.
  10. 10. THIRTEENTH: Through a fax dated the ISm June 2006. the court-appoíntcd administrator Ibrwardcd the notification of the delivery to the legal controller I ín/ eriwnmr judicial] of the Citation. FOIIRTEENWII: Through a document Iodged with the Court Sccretaryk Office on the 12"’ June 2006. the court Advocatc MR NIANUEL LANCIIARES PERLADO requested on behalf of MR JOSÉ MANUEL MAESTRB NIACARRILLA, MR RODOLFO RODRIGUEZ BARREIRO, MS MARÍA UCEIDA JIMÉNEZ, MS INES MARÍA ROBLES GALÁN, MS ANTONIA ROBLES GALAN. MR MANUEL BLANCO TORRES, MS CARMEN FIGUEIRA ROMERO, MR EMILIO DAVILA CABALLERO. MS hdARÍA DOLORES GONZÁLEZ DÍAZ. MR MARCELINO SrNNROMÁN RODRIGUEZ and MS MAUELA RAIGON PICHARDO to appear as an interested party in the procecding, which was accepted by a direction of the court dated the 19"’ June 2006. Through a document fiIed at the Court Secremryk Office on the 12"‘ June 2006. the court Advocarc MS MARÍA JOSÉ RODRIGUEZ ‘TEIREIRO requested on behaIfof MS LAURA MIGUEL RIVERA, MR JAVIER PORTAL ‘IIZIJEIRO. MS CECILIA PORTAL MIGUEL, MS JUANA MARTÍN CIIBERO. MR DOMNGO ORGANISTA MARTÍN, MS MARÍA ALEGRIA GÓMEZ ROBLES, MR DOMINGO GONZÁLEZ MANION. MS JULIA MARÍA GONZÁLEZ HERRERO. MR LU! S PORTAL ‘FEIJEIRO and AUSBANC COMSUMO to appear as an interested party in the proceedhtgs, which was accepted by the direction of the court dated the I9"‘ June 2006 and another subsequent direction of the court dated the 26”‘ June 2006. in which the appearanccs are docmcd to have occurred. having grantcd power of attomey for legal action before the Court Secretary. l Through a document Iodged with the Court Secretary’s Oflicc on the 9"‘ June 2006, the court Advocate MS INMACULADA IBÁÑEZ DE LA CADINIERE Y FERNÁNDÍÏZ requested on behalf of BANCO ESPAÑOL DE CRÉDITO to appear as an interested party ¡n the proccedings, which ‘was accepted by the direction of the court datcd the l9"‘ June 2006. Through a document Iodgcd with the Court Secretargfs Office tm the 13"‘ June 2006. the court Advocate MS NATALIA MARTÍN DE VIDALES LORENTE fiIed an application on behalf of MR ANTONIO CULEBRAS SANABRIA. MS MARÍA DEI. SOL SANABRIA MERINO, MS CARMEN SANABRIA MERINO. MS LUISA
  11. 11. cftlLtïBRA-S RAMlNO and MS MARÍA DEL CARMEN MORAGA hlÉNDtiz for the opening of itisolvency proceedings. which was joined by a direction of the court datcd thu 20"‘ June 2006. ‘through a document lodged with the Court Sccretaryk Office on the l? “ June 2006, the court Advocate MS NATALIA MARTÍN DE VIDALES LORENTE filed an application on behalf of ISABEL LEBRUSAN BARRERA, MR SERGulO RUBIANO (ÉÓMEZZ. MS MARÍA DE LAS MERCEDES LISO RUBIO. MR SERGlO kual/ mo LISO. MS MARÍA ¡DEL PILAR RUBIANO USO. MR MIGUE ANGEL FERNÁNDEZ DOMÍNGUEZ. ¡vis MARÍA m: LA CONSOLACIÓN GLJTIÉRREZ PLIEGO. MS MANUELA CRUZ CAÑON and the núnor ALEJANDRO MEJÍAS CRUZ, representar} by his parents, MS MANUELA CRUZ CAÑON and MR ANiONIO MEJÍAS MEJÍAS for the opening of insolvency proceedings, which was joiucd by a direction of the court datcd the 20"’ June 2066. "through a document lodged with the Court Secretaryï: Office on the 13"‘ June 2006. the court Advocatc Mi! MIGUEL TORRES ALVAREZ. requested un behalf of MS AtIRORA JIMÉNEZ. BENEDIT, MR JOSÉ MIGUEL GIMENO ESPADA. MR CARLOS JIMENO GARCÍA y DUERO SORIA S. L., to appear as an interested party in the procecdings. which was accepted by the direction of the court datcd the 21*‘ June 2006. FIFTEENTH : Through a document lodgcd with the Court on the 19"‘ June 2006. the court-appointcd administrator reported that the real property of the company had been conlributcd to a wholly-owned subsidiary company named OlKIA REAL ESTATE S. L.U. By a direction of the court dated the 21“ June 2006 it was agrccd to give notice to the petitioncr, the court Advocatc Mr. Rodríguez Muñoz, of the atmchmcnt. so that within five days he might request what is appropriate for his íntercsts. SlXTEENTH: Through a document ludgcd with the Court Sccretaryï; Olïice on the 16"‘ May 2006, filed at the Court on the ¡Sm June of 2006. the court Advocale MR IÑIGO MUÑOZ DURAN filed an application on behalf of INVlSECJ SYST S. l,. . for the opening of insoivency procecdings. Ïfhmugh a direction of the court datcd the 2|“ June 2006, it was agreed that previously the payment of the corrcspondíng ¡’cc would bc ¡nada within ten days. _
  12. 12. ‘lhrouglt a document that was lodged with the Court Secretary-k Offiee on the 15"‘ Juno zona. the court Advooate MR MARIANO CRIS’I'(Ï)BAI. . I. ,(')PE7. filed an application on bchult‘ of MS MARÍA DEL CARMEN FERNÁNDEZ (‘ALVIÑO for thc _ {tpciting of insolvoncy proceedíngs, which was joincd by a direction of the court dated the 21*‘ Juno 2006. ‘through a document lodged with the Court Sccrctaryïs Office on the 15"‘ June ZÜOó. the court Advocate MR MARIANO CRISTOBAL LÓPEZ filed an application on bohalfol’ MR JI-zsús titrtïtoz SAN JUAN and ÁNGELES PÉREZ REDOLAR for the Úpfiïníng ot‘ htsolvency proceedings, which was joined by a direction ot‘ the court datod 21" June 2006. Through a document lodged with the Court Secrctartïs Office on the 15"‘ Juno 2006. the court Advocate MR MARIANO CRISTOBAL LÓPEZ filed an application on bchalf of MR JOSÉ ANTONIO MARTÍNEZ MARIAN. MS MARÍA AMPARO MAirríNt-¿z lvtARlAN and MR LUIS MIGUEL MARTiNEZ MARIAN for the opetiiitg of instflvcncy proceedings, which was joiued by a direction ol“ the court dated the 21“ June 2006. lltrough a document lodged with the Court Sccretary’s Office on the 15"‘ Juno 2006, the court Advocatc MR MARIANO CRISTOBAL LÓPEZ filed an application on behall’ of MR AUTELlO GARCÍA GARCÍA, MR JOSÉ MARÍA GARCÍA (¡ARCÍA and MR LUIS GARCÍA SOTILLOS for the opening ofinsolvency proceedings, which wm; joined by a direction ofthe court dated the 22”“ June 2006. “Fhrough a document lodged with the Court Secretaryk Oiïicc on the 2"" Juno 2006 amd filed at the Court on the 20"‘ June 2006, the court Advocatc MR LUIS DELGADO 'l“ENA filed an application on bchalf ot" MARlANO BENEYTU RODRÍGUEZ. DON CASIMIRO GRANERO GALVÁN. MS bAARIA DEL CARM EN St’)Ll; ‘DAD ALJRORA SANCHEZ SANCHEZ. and MS CARMEN SÁNCHEZ SÁNCl-{l-EZ for the opening of insolvcncy proceedíngs, which was joincd by a direction ot‘ the court dated 23"‘ June 2006. SEVENTEENTH: Through a document Iodged with the Court Sccretaryïs Office on the 20"‘ June, the representative ol‘ Mr. Alberto Grande requested, amongst other tnatters. that Central Magistmtes Court no. l be required tu provide the prclíminzuy report by the court-appointed administrator, which was agreod by a direction ot’ the court dated the 26"‘ June. Pam H Qffl
  13. 13. EIGHTEENTH: ‘Through a document lodgcd with the Court Secrctaryï Oñicc un the 2!“ May 2006, the court Advocalc MR MANUEL LANClIARl-SS PI-ERLADO, requested on behail‘ or MR CÉARLOS GARCÍA IWARTÍNEZ, MS MARÍA DEL CARMEN HUERTA BALLESTEROS. MR MÁXIMO GONZÁLEZ BLANCO and MS ANGELA SANZ YUNTA to appear as an interested party ¡n the proccedings. which was accepted by the direction ot" the court dated the 26"‘ June 2006. Through a document lodged with the Court Scrcretaryï Oflice on the 21*‘ June 2006. the court Advocatc MR N1ARIANO CRISTOBAL LÓPEZ filed an application cm behalf of MR SERGIO ROMERO CASQULÉRO, MR JORDI ECAYOLA AUTARRIBA. MS TERESA SANMARTÍ TORO, MS TERESA MARTÍNEZ ORTIZ and MS JOSEFA QUINTANA CANET Tor the opening of insolvcncy proocedings, which was joincd by a direction ofthc court daied the 27”‘ June 2006. " Through a document lodged tvith the Court Secretargfs Office on the QI“ June 2006, the court Advocate MR MARIANO CRISTOBAL lnOPEZ filed an application on behalfof MS MARÍA TERESA ELVIRA RAMOS, MARÍA ASCENCIÓN VALERO CAMUÑA. MR IGNACIO GONZÁLEZ CLAVIJO, MR AltlMED BEN ABDESSADAK, MS CONCEPCIÓN CRUZ BARQUIEL, MR JUAN POZO SOLA. MS JOStïl-‘A FERNÁNDEZ MOLINA, DON GUSTAVO RUIZ SANMAlÜTÍ. MS DOLOROS LONSO MARTÍNEZ and MR RAMÓN LÓPEZ LÓPEZ for the opening of insolvcncy proccedings, which was joined by a direction of the court datcd the 27"‘ June 2006. NINETEENTH: Through a document lodged with the Court Secretargfs Omer: dutcd the 22"“ June 2006, filed at the Court on the 27”‘ June 2006, the court Advocate MR VlTORIO VENTURINI MEDINA filed on behalf of Mr. Juan Antonio Cano Cuevas. Mr. Carlos Figueiridi) Escribá and Mr. ‘ Vicente Martín Peña. directors of AFINSA until the l6"' May 2006, a document of oppositíon to the opening of insolvency procccdings. ln a direction of the court dated the 27"‘ June 2006 the aforemcntioncd court Advocate tvas held to appear as an interested party on behalf of‘ Al-‘INSA and the parties were called to the hearing as provided in Article l9 of the Insolvency Law, to bc held on the l v" July 2006.
  14. 14. TWENTIETII: Through a document lodgcd with the Court Secretaryï: Office on the 22'” June 2006. the court Advocate MR MARIANO (ÏRISTDIEAL LÓPEZ filed an application on behall’ ot" MR ENRIQUE DEMETRIO BEL. ZAPATTiR. MS FRANCISCA PUIOL PERISLLO. MR MANUEL DONIENE (iARC IA. MR VICTOR ASENSIO CAMPS and MS ANA MARIA VALERO CAMUÑA ¡"or the opening of insolvency proceeclings. which was joined by a direction ofthe court dated the 29"‘ June 2006. ‘Through a document lodgcd with the Court Seorctarfs Office on the 22"“ June 2006. the court Advocate MR MARIANO CRISTOBAL LÓPEZ Iilcd an application on behalf of MR DOMINGO AIGUADÉ VALENTINES for the opening of insolvency procoedings. which was joincd by a direction of the court dated the 29"‘ June 2006. ‘Through a document lodged with the Court Secretary‘s Office on the 22”‘ June 2006. the court Advocate MR MARIANO CRISTOBAL LÓPEZ filed an application on irchalfof MR ISIDORO FERNÁNDEZ FUENTES, MS TTSRI-LSA MARTÍNEZ ORTIZ, MR ISIDORO FERNÁNDEZ NAVIO. MR JOSÉ ANTONIO LÓPEZ PALOMINO, MS MERCEDES CASAS LINARES and MS MARÍA DEL CARMIEIN VILARÓ RODÓN for the opening ot‘ insolvency procoedings, which was joined by a direction of the court datcd the 29"‘ June 2006. . Through a document lodgod with the Court Secrctaryïs Office on the 22"“ June 20th‘). the court Advocate MR MARIANO CRISTOBAL LÓPEZ filed un application on bchalf ot’ MR ANDRÉS PEÑALVER LÓPEZ for the opening of insolvency proceedings, which was joined by a direction of the court dated the 29"‘ June 2006. Through a docunient lodged with the Court Sccretatïs Oftice on the 23'“ J une 2006, the court Advocate MR MARIANO CRISTOBAL LÓPEZ, filed an application on behalf ot‘ MS MARIA VICTORIA VICENTE GONZÁLEZ, MR I-TiRNADO LOS/ XNA RODRIGUEZ, MS OLGA VICENTE GONZÁLEZ. M K ESTEBAN VIChZNTTï GUTIERREZ, MS CARMEN GONZÁLEZ GÓMEZ for the opening of ínstnlveitcy prococdings. which was joined by a direction of the court dated the 29"‘ June 2006. Through a document Iodgcd with the Court Sccretaryïe Olïice on the 23"’ May 2006. the court Advocate MS MERCEDES BLANCO FERNÁNDEZ requested on behalfol" MS ADI-ZLINA AIBERDI BALLISTRERI to appear as an interested. party ¡u the proceedings, whose request was given leave to proceed by a direction ol‘ the court
  15. 15. dated the 29”’ June 2006. although the interested party was required to correct certain details. ‘through a document lodgcd with the Court Secretarfs Office on the 23"‘ June 2006. the court Advucate MR MARIANO CRISTOBAL LÓPEZ filed an application un laehall’ ot‘ VALERO VALLÉS 8.1.. and PEDRO CARO RIVAS for the opening of instilveitcy proceedings. which was joined by a direction of the court dated the 29"‘ l une 200o. although the party is required to present the fee for the request by VALERO VALLf-LS. 3.1.. l ' Through a document lodged with the Court Secrctarfs Office on the 23”’ June 2006. the court Advocate MR MARXANO CRISTOBAL LÓPEZ filed an application on hehalt‘ ot‘ MS ROCIO VILLAT ORO ALVAREZ, MS ESTRELLA ÁIAJAREÏI. PINTVXIDO and MR LOSÉ LUIS VILLATORO ARQUERO for the opening ol‘ insolvency proceedings. which wasjoined by a direction of the court dated the 29"‘ June 2006. Through a document that was lodged with the Court Secretarfs Oiïice on the 23"’ ¡’Stay 2006, the court Advotmte MS MERCEDES BLANCO FERNÁNDEZ requested on hchalf of MS LAURA ABRAM ALBERDI to appear as an interested party in the proceedings, whose request was given leave to proceed by a direction ot‘ the court dated the 29"‘ June 2006. "fltrouglt a document that was lodged with the Court Secretary‘; Ofiicc on the 23"’ May 2006, the court Advocate MS MARÍA SOLEDAD CASTAÑEDA (iONZÁLl-rll. requested on behalf of MR JOSÉ IGLESIAS BERJANO. MR JUAN MANUEL en. tiERRERO, MS MARÍA ‘¡TERESA ALBESA PÉREZ, MR FRANCISCO JAVIER GIL ALBESA, MR PEDRO HERAS MANSO, MS CRISTINA HERAS MANSO. Ms MARÍA CONSOLACIÓN MANSO AGUADO, MR ÁNGEL MATEOS LÁZARO, MS ANGELA GÓMEZ PINTO. MS ANA ISABEL DE OÑATI‘, GÓMEZ and MR. FRANCISCO DE OÑATE ‘TENDILLO to appear as an interested party in the proceedings, whose request was given leave to proeeed by a direction ol" the court clnted the 30"‘ June 2006. although the interested party was required to correct some matters. ‘TWENTY-FIRST: With a filing date at the Court Secretarfs Oflice of 28'" June ot‘ 2006, the representative ot‘ Ms Pilar Garcés Fernández requested access to the evidence gathcred before the trial, which was rejected except in the aspect related to that
  16. 16. already requested from Central Magistratcs Court No. l. in the Mit dated the 3'" July 2006. TWÏNTYZSEGOND: Through a document lodged with the Court Sccrctary‘s Office on the 9"’ June 2006 and filed at the Court on the 30"‘ June 2006. the court Advocatc MS MERCEDES GALLEGO ROL requested un behalf of MS ANA lSABlrZl, h1:‘l'l:3()S SIMÓN and MR JESÚS CECILIO GARCÍA lZQUlIiRDO to appear zm an interested party in the proceedings, whose request was given leave to procced by a direction of the court dated the 10"‘ July 2006. Through a document lodged with the Court Secretary} Oliice on the 29"‘ J une 20m5, the court Advocate MS CAYETANA DE ZULUETA LUSCHlNGER. requested un‘ behallhf OCU to appear as un interested party in the proceedings. whose request was given leave to procesal by a direction of the court denied the 10"‘ July 2006. rwrmryírmnï); On the 4*" July 2005, Central Magistrates Court No. l filed evidence of the legal action brought incorporatíng a CD with all the documentation with the report ol" the AEAT. as well as the preliminary report which the court-appohtted administrator was commissioned by said jurisdictional body to prepare. TWEN'FY-FOIJRTH; There are other documents filed recently which due to the workload falling on the court have not been gone through yet. Nonctheless, all those n _ parties who duly justilied the filing of documents for appearing as interested parties mm . reviously tu the l-learing were accepted to the same with full eflect, without prejudicx: the decision which has to he made on the particular matter. FUNDAMENTAL POINTS GF LAW ELX! ) ‘The l-learing that gives rise to this decision was conducted with the initial allcgntíon of procedural dcfences that could prevent the valid prosecution and ending of the Hcuring. ‘These questions were resolved in the hcaring itself, as well as the appeuls for revcrsal which were brought orally. Just one question was loft pcnding, which was not obstructiva to the continuation of the record, rclatiug to the lack ot"
  17. 17. procudural capacity of AUSBANC CONSUMO and AUSBANC EhdPRFIS. -’»S. which shall be hcretmdcr decided. Nottvithstanding that started. l consider that al] these matters must ‘bc the subject ot‘ a written resolution. in accordance with the provisions of Art. 210 of the Rules of Civil Las»: Proccdurc. s0 that the parties may properly exercise thcir right to the appropriate appcai against this decision. SEGÚN): First of ah, the lawycr. Mr. Aicobcr, opposed as impcdiment to the contínuance of the Hearing, the failure by the debtor to submit at the Hearing its ZICCOUHÍS. The reason is founded on the provisions of Article 18.2.2 of the Insolvency Lava. Said precept reads as tbllows: "The debzor having started opposilian, the judge, Ihefbliotving day. rita/ I cal! the parties lo a hearíng, warning them so ¡ha! they appear al the ¡’tearing nríth al! the means qfprozafihzt/ can ha ¿rxnnzined thereat, and ¿ft/ te debmr were legally bound Io ¡wep banks: jtiarcervarnfng this deblor so ¡ha! ¡í appears tvíliz the statulorily nmndatury {mokt- (¿/ 'accr>urt! ,“‘ In this pruvision the parties are ggrtgg and the debtor is ¿aggg as to the need to appear with 21H the means of proof and dístinctïy, as regards the debtor, as to the need to eippear with the compulsory accounting. ‘These wamings are considered as a procedural duty and it was accepted in this manner by the Iawyer proposing the question. However, the aforententiotied lawyer in the law. What this means is that if the warning made by the Judge is not hccded by the debtor. it would preclude for that party the possibility of providing evidence in order to cstablish its stilvcncy. We can ask why express reference is made to the accounting of the dcbtor. and why the debtor is “wamed" about its submission. which term has a greater threatening tone than the generic term of “alerting” which is used for the rest of the evidence. The zmswer is given in the provisions of the first paragraph of the aforcmentioned An. l8.2 infine of the Insolvehcy Law. lt is provided under said mie:
  18. 18. “The doblar muy [X1842 ¡tx oppasilion o)! (¡te inexíslence (¿fthejbct on which the requtas-t is bancos] ur on that, even tfíhatjázct does estlsl. the debtor is: no! in u símatíon of‘ irtvulvcncy. In the lancrcusre. il shall be incumbem un the ríe/ nor ¡a prove ¡Is s-alventy am]. ¿‘fit were legally abligalad to keep books. this evidence shui! have to be based ¿m the books being lwpl in accordance with the law. " 'I‘his rule cxplains the reason why special mention is made regarding the submission of‘ the accounts, and the debtor ¡s warned of this. The reasoning lies in that the consequences dcrisáng from the ¡aforemcnlioned procedural duty are ¡nora relevant "or significant than those relbrríng to the presentation of any other prool’. ‘This is so because the debtor obligated to keep books is bound to base its evidence on the accounting úocuments. Some authors, like JUANA PULGAR. understand that this ¡s not exclusive and they are also able to ‘employ other means ol‘ prool‘, as in the Hearing the parties can appear "with al! the means qfproafthul can be examíned therear" (Art l8.2 lnsolvency Law), Howcvcr, these other means ofproof can only be accepted as coruplemcnlary to the accountlng, such that ifthe accounts were not presented. it would prcclude for the debtor the possíbílity of presenting any other proot’ to cstablish its solvency. ANGEL BONEÏ NAVARRO in the work "Comentarios a la Ley Concursal " supervisa! by Professor BERCOVITZ, states: “for the debtor (the presenting of accounting records) supposes a duty. Howevcr, these documents are not those required by the law (Art. 266 of the Rules of Civil Law Procedure) in order for the initial document of the proceetlings to be accepted, in such a marine: that the failure to present them would involve the non-admision thercof (Art. 269.2 of the Rules of Civil Law rs. .___________ f" t" r" 3 l Procedure). Nor docs it give rise to the hearing not being held. lf they are not presented. L’ the debtor cannot achieve the clcsired cvidcntíary result, and that is the end of it”. The indicatcd effect ¡s very far from the claim that the pmponent ol‘ the procedural question upholds and all those other persons who have joincd the same. What is intended is the lennínalioti of the hearing per se, as if the warning made by the judge, when ¡t is not bccdcd, were an impediment to its being held. 'l‘his effect would require an express legal support which il. does not have, and consequcntly, it is tïtting to rejéct it. One ofthe lawyers of the creditors considered that ¡f the debtor cannot establish lts solvcncy. due to not having pxescntcd its accountíng. the I-learing lacks content.
  19. 19. p“. .., .._i; -.u_. ,__i__fi_______q Juan ost cara: rxirstés ¡mártires Jurado de i:1;_¡l. ¿_í_>« Padre Üamtán, 29.23233 a‘ . me: 34:1 ¿e .53 . 2:; l cannot agree with this asscrtion. Art. i8.2 of the lnsolvoncy Law expressly protidcs that "(i243 «leblnr may base ¡Is oppositívn (m ¡he ínexixtence (¡f/ he cirenl on vrhirsh ¡ha request is based or on, even ¿’fr/ zar event does exixz‘. ¡he doblar ¡mi being in a SÍflltI/ Ívtï q/ ‘Írïsoltrency ‘Htc cvidcntiary limitation refers to the matter of solvency. but not to the evidentiary event on which the credito: upholds his request for the ttpening of insolvency proceedings. This evidentiary event could be established or rebutted by any other means of proofi him-cover, the debtor may oppose issues referring to the entitlcment of the cmditors to request the opening of insoivency proceedings. Professor ROJO upholds this in his "Comentario a 1a Lay Concursal stating that the óebtor may base its opposition on the xtegative of the condition aiieged by the appiicant, in that the credit is subject to a condition precedcnt, in that the credit is litigíous, in that despite being a creditor. the applicant has taken on the credit within the six months prior to the tiling oi’ the request by means of an inter "vivos act and on an individual basis. after the aforemcntioned credit had expired (Att. 3.1L of the lnsolvency Law). ln the same manuel’. the dcbtor can raiso opposition alleging a full lapse of the right of credit (Page 426). For her part. the Professor Juana Puigar, in her monograph “La ¡Jeclaracián del (Ïnncirrso de Acreedores”. also reoognises that the debtor can opposc issues such as capacity, authority. oompetence or lack ofjurisdiction (hago 685). 'I‘HIRD: Secondly, it was claimed that the tbrmer directors of AFlNSA locked authority to opposc the opening of insolvency proceedings. The question is the following: Central Magistmtes Court no. l appointed an administrator for AFINSA. ¡n itsi’re-’i'rial Proceedings 134/06, in view of which this Court awarded the procedural step ot‘ opposition to the opening of ínsolvency proceedings both to the oourt-appointed administrator and to the entity itself representar! by its own board ofdircctors. lïirstly, it is claimed that the directors appearing from AFINSA aro natural persons that are other ¡han the debtor legal person and conscquently lack authority to object. Before anything else, one issue must be clarificd. The Court never gave notice to the fcmner directors of AFINSA to oppose. in their own names. the opening of insolvency proceedíngs. The notice was given to AFINSA. legal person. This is so. as
  20. 20. the opposition is an exclusive power of the debtor. This is clearly provided in Art. l 5 of’ the lnsolvency Law and HKCWÍSC, in articles 18 and 19 of the lnsttlvcncy law. The document sent by fax by the court-appointed administrator on the 14"‘ June 200o (folio i756 and original document lblio 2671) must be brought up. ln this document. it is statcd that on that date a Citation addressed to AFINSA has been received. ln this situation, the court-appoíntcd administrator requests that the (Tour! clarify with exactly whom this procedural stage should be carried out. As a consequcnce of this request, the direction of the court datcd 14"‘ June 2006 is ¡nado (folio i759). in which the persons who materially must handle the proceedings are clarified, which are none other than the persons legally responsible for the company whose oñice was in three before the appointment of the court-appoínted administrator. The scope of this pronouneement is evidently of a clarifying nature and solely intended to ¡esolve a reasonable doubt of the person who had to give the notice. The lhct is that document ofopposition of AFINSA is headed as follows: "Juan Pmtoniti Cano Cuevas, Carlos de Figueiredo Escribir and Mr. Vicente Martin Peña, directors of the company AFINSA BIENES TUXNGIBLES SA. up lo the l6"’ May 2006, on which date the Central Magistrites Court no, l resolved, by means ofa court order. to plane the aforemetitioned company into administration”. ln the plearling part of the document of opposition a similar formula is reiterated. l understand that the problem stems from the legal situation raised, which may have evidently raised a series of reasonable legal doubts as to the val idity of the office of the direetors of AFINSA. Due to this. the court ofiiered the directors the possibility of correcting the pleading part of the document in the respect ot’ ciarifying that they appeared on behalf of AFINSA, and they accepted intmediately the aforetnentioned possibility. Some creditors considered that the defect was irreparable, but this argument has no legal support in the light of the provisionsof Art. 418 of the Rules of Civil Law Procedttte, in which the cotrection of errors in capacity or representation is expressly permitted. FOURTH: The above error having been corrected, it is appropriate to begin to analysis the argument invoked relating to the legal viability of AFlNSA being able to ' appear in the insolvency proceedings with :1 separar: dcfence and representativos to those of the court-appointed administrator.
  21. 21. Before: anything else, it must be indicatcd that the adoptcd solution is u coitscquence of the mandale directly addressed to the Court by An‘ 24 ot" the Spanish Constitution: “all perxons are entidad la rtbtaíiz the qffeclive protection of the court in the exercise qfzheír lcgitinutlc rights and inrerc. tt. s-_ tvilhnll! ¡n any case a lack ofproper c/ «¿féttce being able lo rtccur”. The figure oí" the court-appointed administrator has bccn defined doctrinally as “the agent charged, by legal decision, with adntinistrdting the assets of another or of cxcrcising the powers of assistance or supervision in the management ot‘ those- assots, indepcndently ot‘ those parties in whose benefit he ams". lt is thus defined in Ïbcltnical Recommendatíon no. 2 published by REFOR [Registro de Econamis/ at‘ Fnrenres]. ln the same respect. ‘it is appropriate to quote the Course led by the teacher in prncedural law, ¡‘vis María ¡ángeles Velázquez Martín and offered by’ REFOR itself. ln accordztncc with that stated above. it is difficult to uphold that the court- appointcd administrator bc a body of the company, such that it could organically represent that santo. l consider that the couzt-appoirttcd administrator is a third party who is par! of the company. even though lie administers and reprcsents ¡t by court order tvithin the scope itself‘ ot‘ his administration, as the actions taken by him, within this scope. are directly and lcgally effective for the entity. Think that the court-appointed administrator docs not have to always and nocessarily‘ act in the interests of the contpany hc is representing, ns his obligation is to «9 539 act in the interest of the legal right in virtua of which he was appointed by thejudge. Í. h’ 35 . ._. .., ._ 1 4 l ¡understand therefore that the appointment does not imply either the dísappcarance of the corporate bodies, nor that that effect is contempiated in the laws. There will only be the possibility, in accordance with Art. 633 of the Rules of Civil Law Proccdure that “once the ¿zdminixlration by the court has been rcsolved, the doblar sha/ l JUÁN DEL cantar ‘¡más Intérprete Jurado de t‘ ' Padre Dsmián. 29- 2863- Ïíf. 91 345 ¿v3 ¡‘.3 — Faz: ‘3 bc required to causa lo be responsible for the adminixlration lt-‘Ítích up lo that time it has‘ been in chzzrgct 12]". lt must mean that the stepping down is for “the administration". but that docs not imply either incnpacity or disqualiñcation, nor absolute loss of the capacity to act. lt is relevant to insist that the representative powers ot‘ the court-appointed administrator are not absoluto. but that they are limited to the scope of the administration incumbent on him.
  22. 22. Professor Velázquez Martin. mentioned above, states that “the administrator ¡hay take part in legal proccedittgs cxercisittg those Claims tvhosc object. by extrajudicial means. would constitute an act ot‘ adtninistrttion“, and in addition states “howtwer, the scope ot‘ this authority of the administrator to take part in legal ptoceedings tvhatevcr matters are deemed necessary for tbc proper operating or ¡tchicvittg of the aim of’ the administration, shall bc determined by the legal ruling establishittg the administration where the limits of the same will be established". 'l‘he Court Order dictated by Central Magistratcs Court no. l. dated the 16"‘ ivlay 2006. in which the placing into administration of the company is decided (folio 910) states that: “it is a measure aimed at making the activity which is allegcdly criminal. based upon circumstantial evidence that is being investigated in the current case cease and to etïectively control the flow of money and funds. and prevent that. in one xxmy or another. they continue to flow towards the (irgïllïlíiïlliüfl or any of the structures and the gettcrai public that uses its services. Piercing into administration is a measure which is ímposed and in any case is of a strictly criminal nature (. .. ). As there does exist evidence of the ownership andfor use of these tuercantile companies. and of their economic flows, by the charged. it ¡s appropriate to evaluate the degree of this cooperation and to do so, the accounts and entry and exit of money and its beneficiarios must be controlled. " ln short, the measure is taken with the aim of avoiding criminal reiteration und to check the degree of cooperation between the accusctl and the supervisor} company, controlling the flow ofntoney and funds. _ ln accordance with the forcgoing. l consider that the scope of action taken by the cotirt-appointcd administrator should bc limited to the purpose of‘ his appoitttment. tvhich should not include the possibility of opposing the tipcning of insolvency proccedings. ‘This ¡appears to be also the Criterion of the Central Court. according to that indicated by said jurisdictionztl body in an order dated the 5"‘ June 2006 (folio i263) in which it rules in favour of the court-appointed administrator with the purpose of not contesting compulstiry irtsolvency.
  23. 23. For the purposes of correctly understanding the aforcmcntioned order, it must bc clarified that Central Mngistrates Court no. l appointcd a legal controller [inlerventar] designated by the company. in accordance with the pmvisions ofArt. 631.2 of the Rules Of Civil Law Procedure. Said legal controller [intenrenmr] objected to the procedural position which the court-appointcd‘ administrator was holding consisting ol not uppnsing the opening of irtsolvency proccedittgs. The issue having been raised, the question was submitted to the Examining Magistrate, and is resolvcd in the aforementiotied decision. So, in that order, made within the scope of criminal proceedings. it is indicatcd, as couid not bc done otherwise. that: “it is not possible to resolve as to the entitierncnt of the creditors in the insoivency proceedings, as that is a matter incumbent on the mercantiles court". "This being the case, if this matter has to be resoived by the mercantilc judge, an approach which l am in full agreement with; and if the only moment to misc it is when opposing the opening of insolvency procecdings. we must give AFlNSA the opportunity to opposc me opening of insolvency proceedings; and we must do so by accepting scparatc representativas and defcnce to those of the court-appointed admitiisttator. This is so because the Examining Magistratc supported the position of the court-appointcd administrator of not opposing the opening of‘ insolvency proceedings. N] E) kés vtÏ 78 t í É Let us not forget that the immodiate effect of norvopposition is the opening of f fi insolvency proceedings without analyzing any other circumstancc, in accordance with f E; f; j; that itidicated in Art. l8 of the Insolvency Law. lt is clear, therefore. that if this sepas-nte . represcntatioit and defence were not accepted. nothing could bc alleged in this l z insolvency vcnuc as to the cntitlcmcnt of the crcditors or on any other question that i s É could be raised in the document ofopposition to the insolvency pmceedings. ¡__ . _ The interpretation in accordance with the Constitution of Art. 632 of the Rules Of Civil Law Procedure leads us to the same conclusion. ln this respect, the consolidated constitutional doctrina as to the “interprctation in accordancc with the Constitution" must bc temembered (Constitutional Court Ruling i081 i986 or 341/93, among many others”). such that among several possible interpretations oía rule, that ínterpretation which is in acoordance with the Constitution must always be chosen. In the event that it is not possible to find an ínterpretation in
  24. 24. ¿recordarme t-vith the Constitution. the only viable alternative for the (Ïourt is to raisc a question nl" the ttncnnstítutional nature of’ the rule. as is understand lrnm the pmvisinns ofAn. 5.3 ofthc Law on the Organisation of the ludicittry. This prcctzpl, as indicatcd in the Constitutional Court Ruling of 27 October 2005. only offers Judgcs and Courts the Optiun ot“ either carrying out the interpretation in accordancc with the Constitution or ruisittg tltt: question ofttttcunstitutionaliiyf’ T110 qttcstion being raised lies in dctemtining what the legal límits ot‘ the concept ol’ the cnurt-appnintcd administrator are amd tvhat the most appropriate intcrprctation ot’ Art. 632 ofthc Rules ttfCivil Law Procedttre should be. This prccept establishes: “¡Viven the pre-existing direcion art- substíluled and il ‘is not rathertvísc provided. the rights, ahligrrlirmt: power-s and respansilaílilies qfíhe cnurI-appoinlcd adntitzistrzrlrar s'ha]! be those which (¡t-dinamita corres-pana‘ lo the subsfítuled directora’. but he shall need the arathorizctlian Q/ "lhe ¡court ¡n (trder (o dixpotre (¿for encumher holding‘ ¡n the company or qfrhít; in other companies. real properly ur any other property (¡ral due Iv IÍZEÍI‘ nalure or impar/ ance the legal body may e. =rpre. s:s'l, t= ¡rave slaled. " According to the citcd provision. the scope of the substitutiott, when it is not tttherwisc provided, shall refer to the whole group (tf pnwers. rights anti obligatiotts which grdinaríiy are incumbent on those substituted. For dísposals. it cstablishcs the ¡reed for the authorizmti nn of the court. We can consider in which ol’ these categories the opposition to the opening ol" ittsolvcncy proceedittgs ihlls. l consider that in neither of them. The excrcising of the ¿si gtás ¡ l t right to detbnce ¡s not tm act of disposal, but rather the tteccssary instrument for the atltttittistrtttiott of the assets thcmscivcs. l titercfore share the opinion of the lawyer Mr. "ÏÉ v Alcobcr in that it is an act of administration. But l disagree that it is an orclinary act of in’! 4-19 . .-. ,». -— . . Cvu- . .< administration. which is that covered by Art. 632 of the Rules ofCivil law Procedure. to Jurado sis sn ‘l lt is an act of administration which is completely extraordinary, as the insolvency UAN DEÏÉÁEEÉ ram pmcecdittgs ¡rave an especially significant rule-Vance. The windittg up and liquidat ion nf‘ 1 J tntárpm Fiore i}. ‘n! 21345 <1 the company can stem from said proceedirtgs. such that the very legal personality of the company is at stakc. lt does not necessarily have to bc like that, but the men: possibility that it could (‘tCctlt is sufficicnt for these purposes. l consider, therefore, that as an extraordinary act of administration, which it is, it is not covered in Art. 632 of the Rules of Civil Law Proccdure, which only rcfcrs to ordinary acts ot‘ administration. We must‘ resort, by analogy. to that legal regulation , . a
  25. 25. which is the elosest to the legal situation under consideratíon. This regulation can bc none other than the insolvency regulations antl the fact is that the lnsolvency [saw permits a scparate detbncc and representative for the dchtnr to that of the ÍRSOlVCnCy administrators. lt is so deduced front ‘the pmvísions of Art. 184.2 ol’ the lnstvlveney Law. which uses the term “always”: “Thu deb/ ur shall alwayw ur! reprcasenrcd by u mari rldlfirltilllt‘ and arsíslcd by u Iauyer-‘I liven. therefore. in the cases ol‘ the suspension of the powers ol‘ administration and disposal of the properties of the debtor. "This being so. the situation of‘ the court-appointed administrator would bc similar to that of the insolvency administrator. therefore the cryurt-appointed adntitiistrutor and the deblor would act with completely difieren: representatives and dcfences and would act in the proceedings as different parties. l consider that‘ this solution is the solution most in accordnnec with the provisions of Art. 24 ot‘ the Spanish Constitution and therefore that which must be zidopted, Certainly. the admission of AFINSA in the declaration process has meant a slight ticlay. imposed by the pmcedural steps. which can have caused some harm, but the darnagc-‘wuirld be inlinitcly greater for all the parties ¡(‘the opening ot’ insulvcncy prvaceedings were suhsequently annulled, with all the elïccts that that involves. The lawyer. Mr. láaillo Osorio, held that the Mercuntile Court is lticrarchically inlbrior to the Audiencia Nacional and gave to understand that this court was ¡nfiinging the decision to the appoixitment ofthe court-appoinuzd administrator. li must be pointed out that the body which decided on the nitrssure is not the (Ïrituitml Court of the Audiencia Nacional, but Central Magistrates Court no. l. which evidcntly is not hierarehically superior to this Court. l am not saying this with a desire for confiontatïon with said jurisdictinnal body. as cooperation must always preside over the relations between that court and this court. ns has hcen demonstrated up to the present time, which is essential for the proper progrcssion ol"hoth pmcccdings. l-‘urtltcnnure. l understand that this court has in no event actcd against the provisions of the (Scntral Court, ‘but quite the contrary. has been ¡ts necessary cotnpletneatt. F‘ll*"¡‘l{: Another question which was extensively debate-d zu the Hearing was the extending o! ’ the period awardcd to the administrator so that he could oppose the opening ol‘ itisolvency proceedings.

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