According to the Insolvency Act 1/2020, sales of distressed assets made by the debtor within two years prior to the opening of insolvency proceedings may be declared invalid by the judge through an action for recovery.
This would be the case if the purchase is considered economically damaging to the insolvency estate under the provisions of the law.
In addition, sales of distressed assets made by the debtor within two years prior to the date of the announcement of the existence of, or intention to enter into, negotiations with creditors with a view to achieving a reorganisation plan, as well as sales made from that date until the date of the declaration of insolvency, even if there was no fraudulent intent, are also voidable, provided that the following two conditions are met:
- a reorganisation plan has not been approved or, even if approved, it has not been approved by the judge
- insolvency proceedings are opened within one year of the end of the effects of this notice or of any extension granted
It must also be taken into account that if the ownership or availability of the acquired assets is subject to litigation, the purchaser remains subject to the outcome of the litigation.
In such cases, the insolvency administrators must notify the court dealing with the litigation of the sale. With this notification, a succession to the proceedings automatically occurs without the other party being able to object and even if the acquirer does not intervene.
If, on the other hand, the assets were part of a productive unit and were transferred in rem, the acquirer is responsible for these rights in rem.