Proof periculum in arrears on liens
Posted by Manuel Casal | Section Juris. procedural
"This room can not agree with the statements of the appellant to jutjador quo requires a test impossible and meaningless to the decree of 1 May 1922 in respect of arrears periculum. So when Aunt instance states that "in applying the general rule, the plaintiff prove that there are indications that the defending attempts to remove property that holds ...", as can be seen not requiring proof the disappearance of the goods (the Aunt says "trying to remove") but it is demanding from the agent, in accordance with the rules that the onus proband Discipline is to provide the evidence that the actions the debtor is trying to become insolvent or unenforceable, without the allegation is sufficient the presence of periculum in arrears.
III. - Far different is if the previous actions have contributed to the evidence which emphasize the danger that the decision pronounced may become unenforceable. Thus, in the instance such as this height, it is argued that the debtor has requested several times and that has ignored the requirements, which is of French nationality and, therefore, has no roots in the country and at this height, which is indicated in situations of rebellion litigation.
With these indications and evidence found in the proceedings, the Chamber must also conclude with the resolution of analysis, in that it has not tested the concurrence of periculum in arrears. So, firstly, no mention was made of whether the debtor has property or has an establishment in the Valleys of Andorra sufficient to meet the debts that are taken. And this information must be in possession of the bank, every time it performs studies solvency of their customers before granting or refusing loans requested. And, secondly, the fact of refusing to meet the requirements of payment but an attitude contrary to evidence compliance with what is claimed by the creditor or the situation of being in rebellion litigation, entails option assumes procedural preclusió of the trial proceedings as they occur, can not be understood as evidence that the decision pronounced may become unenforceable. And the same conclusion must be reached with the fact that the debtor is of French nationality, since this fact, along with abandoning requirements addressed by the financial institution may not be understood as signs that help to understand the courts being fen disappeared goods to the detriment of creditors. "
Aunt of the Civil Division of the Superior Court dated 15/10/09, speaker JM. April, Aunt 146/09.
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