Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 67

The study does not only identify commonalities, it is also interested in the differences between the enforcement frameworks of the Member States. This analysis produces an unambiguous result. The differences primarily concern the individual enforcement of secured loan contracts. More precisely, the Member States take different approaches in terms of equipping the bank with autonomous powers to enforce security (both movable and immovable). This applies to enforcement against all types of debtors (corporate, sole trader/partnership or consumer). The relevant topics are:

▪ Whether the bank can privately sell the security;

▪ Whether the bank can take ownership of the secured asset;

▪ Whether the bank can enforce the security without going to court.

A less relevant, but still noteworthy theme is the opening and governance of insolvency proceedings. These issues, however, are to a large part only significant insofar as the insolvency proceeding is an impediment to individual enforcement. The main characteristics are: whether there is an entry test for restructuring proceedings to avoid abuse of moratoria to the detriment of individual enforcement of security and whether triggers for collective proceedings take into account the future cash flow of the debtor.