Prepackage bankruptcy in Mexico
A debtor may file a petition to be adjudicated in bankruptcy in three ways: the ordinary petition, the prepackage petition, and the imminent general default petition.
Bankruptcy adjudication is not automatic, and
even in voluntary petitions, a prebankruptcy procedure needs to be initiated
before the bankruptcy adjudication. In the prebankruptcy, the parties will
submit evidence to prove whether the debtor is in general default. It is not
sufficient that the debtor merely confesses a general default to the court.
However, there is no need for a prebankruptcy procedure in case of a prepackage
petition, and the judge will immediately adjudicate the debtor in bankruptcy.
The prepackage petition must be signed by the
debtor and the creditors representing at least the simple majority of the total
liabilities stating, under oath, that the debtor is in general default.
Besides avoiding the prebankruptcy procedure,
there is no other utility of the prepackage petition because:
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The
reorganization plan, signed and submitted by the debtor and his creditors, will
not necessarily be the final plan submitted for approval because the creditors
that signed it might not be allowed as creditors or because they do not meet
the majority while other creditors that did not sign the initial plan do.
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There
is no legal provision to compel the creditors who signed the prepackage
petition to sign the plan's final draft (Lock-up agreements).
For further information about bankruptcy law in
Mexico, my work "Bankruptcy Law in Mexico", can be accessed at https://works.bepress.com/francisco-rodrigueznepote/4/, where it can be downloaded freely.
A complete translation of the legal text can be found there, as well.
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