スペインでは、ゼロからスタートする家族のための破産手続なしで唯一の国である
No right to a second chance
Spain is the only country without bankruptcy proceedings for families to start from scratch
The payment in kind only occurs in 11 U.S. states, but individuals borrow more
Sin derecho a una segunda oportunidad
España es el único país sin procesos de quiebra para que las familias empiecen de cero
La dación en pago solo se da en 11 estados de EE UU, pero los particulares se endeudan más
Visita la nueva sección de Vivienda
Lluís Pellicer 4 JUN 2013 - 14:51 CET
No right to a second chance
Spain is the only country without bankruptcy proceedings for families to start from scratch
The payment in kind only occurs in 11 U.S. states, but individuals borrow more
Visit the new section of Housing
Lluís Pellicer 4 JUN 2013 - 14:51 CET
Spanish families have been around five years trying to reduce excess debt accumulated during the expansion. Since the beginning of the crisis, in 2008, households have settled almost 100,000 million. The price of that debt reduction, however, is still very high: last year alone there were 38,778 evictions. In addition to homelessness, many families do not even have the chance to raise the debt meet other slopes almost for life, the difference between the mortgage and the value at which housing has been sold in many cases much lower than it was when they bought it.
Social movements, with the Platform of People Affected by Mortgages (PAH) in the lead, calling for a second chance for families. Given the inadequacy of the measures taken by the Government, from social organizations to professional or college groups look beyond borders to establish in Spain a system to start from scratch. Since 77% of household debt is mortgage crawl, the first place they looked was the United States, which last year carried 767,000 homes, according to U.S. consultants estimate. Various social sectors, but also business-practice regardless asked in lieu of payment, delivery of the house to the bank in exchange for settling the debt.
U.S. households can request
a payment plan
The payment in the formula is known in the United States, although neither the only nor the most common and depends on each state. Indeed, the range of possibilities that exist make the system that is used is not important. "Being in one State or another not so important, because there is always the possibility of going to a meeting of creditors to set the counter to zero the next day. In Spain is different. It matters whether or not payment in kind because there is this other possibility, "says Professor of Economics at the Universidad Carlos III and researcher Fedea, Marco Celentani.
The Law on Measures to Protect Debtors, Debt Restructuring and Social Rental in force since May only provides payment in kind in very limited cases-neither universal nor reduced retroactively and default interest. The draft law on support to entrepreneurs and internationalization also seeks to address the "second chance" through an amendment to the bankruptcy law, which he says will benefit "all natural", that is, consumers also. They can see how their debt is forgiven if they have not ceased to pay claims against the estate, the privileged-as mortgage-and 25% of debts. "There is no second chance to those who have less," said Matilde Cuena, Professor of Civil Law at the Complutense University.
The United States has a plan A and a plan B. In the first, the consumer has a debt with a guarantee: the house. What can you do? Of the 50 U.S. states, only in 11 the general rule for the bank to recover the debt goes through something like payment in kind. Actually, this is either the territories where credit is secured only by the property financed or California or Arizona, where it is very difficult to claim on the remaining assets of the debtor because the law prevents him declaring much of the heritage as indefeasible or performing the execution according to a "fair price" and market, as discussed by the working Warranties and residential mortgage default: Theory and evidence from the United States, prepared by the teachers Andra C. Ghent and Marianna Kudlyak. In other states, if the sale of the home does not cover the loan, the bank may ask other action against the debtor's property.
Brussels believes that citizens should be able to cancel debt
United States was not only a laboratory of mortgage products, many of them toxic, while the bubble swelled. The subprime crisis forced the federal government to seek solutions to the wave of foreclosures. Professor of Economics at the University of California Michelle White explains that in 2009 it was proposed, without flourish, a kind of bank removed so that the value of the loan is adapted to house value. "The government has several programs to prevent foreclosures by paying lenders some money in exchange for the reduction of the mortgage, but have not been very effective. Most lenders choose not to participate in these programs, "says White.
The payment in kind, however, is not a happy ending. On the contrary, assumes that the buyer has been forced to leave their home. "The best option is to reach an agreement with the bank to reduce monthly payments or the amount that the consumer should be able to stay home," said political analyst at the Center for American Progress Sarah Edelman.
For there is no other choice but to leave the house, say to sources, the deal is still the best option. For the debtor, because it depends on the ease with which it may incur new debt in the future. And the lender is not interested in incurring judicial or reputation for small amounts. "We have a big problem of high levels of vacant homes, which has done much harm to neighborhoods," says Edelman. According Andra C. Ghent, professor of finance at Arizona State University, several studies conclude that foreclosure cases the loss of value of the property is accelerated and down an average of 28%.
Financial sources explain that, in case you have to leave the house, the first choice so far are short sales (short sales), rather than in lieu of payment. It is the debtor attempts to sell the house on their own, even below the value of the loan because the bank believes that the devaluation will be less than if it goes too long. The Federal Housing Finance 125 232 last year approved short sales, compared to 16,232 repossessions. Taking into account all the crisis period since 2009 has been approved short sale and 36,017 410 061 tions.
In Germany, a judge sets the conditions for return
"At the beginning of the crisis barely existed payments in kind, but today consumers use them more often," says Edelman. One of the options taken by the government is that debtors financial mortgages backed by Fannie Mae and Freddie semi Mac eligible for payment in kind when else has failed. In these cases, the consumer can give your floor the bank, which renounces go against the difference.
So far the plan A. Because no plan B. Imagine that affected also has home, outstanding debt on your cards and consumer credit. Or that after the debts have been run. The most logical choice, in this case, will be to declare bankruptcy. And you can do through two items of the Bankruptcy Code: 7, by which the debtor loses everything he can seize, but is relieved of all debt with the condition not to ask again at the bankruptcy eight years, or 13, which requires a repayment plan preserving the business, home and property of the debtor need.
In practice, then, in the U.S. it is possible what is known as the fresh start in the event of losing the house. "If someone has a home and file bankruptcy, debt runs out. Lose the house, but falls to zero. This process, which does not occur in Spain, is very ugly, but has allowed households deleverage, "said the professor at the Harvard Kennedy School, Carmen Reinhart.
Italy approved
in December
2012 a law of indebtedness
From the formula that employs the debtor the opportunity to remaking depend more or less easily. The American system of lending is based on the score of each consumer. The better, cheaper the credit. "In case you end up producing foreclosure, the debtor may not obtain credit in seven years," says Reinhart. Andra Ghenta goes further: the consumer will be difficult to access even a holiday card or a telephone operator.
What are the advantages of bankruptcy? A finance executive explains that bankruptcy or foreclosure also involves a stain on that record. And also, but to a lesser extent, in lieu of payment and short sales. "But all that changed in the United States. Today you can not be fit and suddenly everything can change dramatically, "he says.
If in America there are many formulas as States, in Europe the map is similar. Ghenty believes that "most European countries, including Spain, have legislation on bankruptcy much less generous than the United States." The European Commission recently published a study commissioned from the consultancy London Economics on the paths taken by the countries of the European Union to protect consumers who are in financial difficulties, from payment in kind to the contests.
The paper notes that only a few countries preserve the precept pacta sunt servanda, ie that debts be paid without question, most countries provide for procedures to alleviate the burden of the debtor, and many states have decided to pass judicial system administrative. The report notes that the "cancellation of debt" should not be "automatic right" of the consumer, but this itself should have the right "to access it" unless it is shown acting with "bad faith." Spanish law only adds contemplates the payment in kind, though not universal. Marco Celentani says, however, that this consideration is very "generous".
In the U.S., the credit is more expensive in states with payment in
Most experts look to the German model, but even Italy has its indebtedness law, passed in December 2012, which allows citizens to avail themselves of bankruptcy. In Germany, the judge sets a payment plan that allows escape in a maximum of six years of debts with creditors, with debt included. "In Germany, hardly going to produce a situation in which the value of the house exceeds the mortgage banking because there can only pay for 60% of value," explains Cuena. According to the report of the European Commission, on July 18, 2012 the government of Angela Merkel proposed a revision of the law, among other reasons, to reduce the term of debt cancellation six years to three.
Critics of all these mechanisms, especially the banks, warning that would mean a tightening of credit, particularly in lieu of payment. The consultancy Oliver Wyman warned that if the house was the only collateral the Spanish mortgages become more expensive 60 euros per month. U.S. shows that this need not be so. "We have found that mortgages are more expensive in the States in which the property has no other security than the house itself. The main reason is because the GSEs require no different guarantees between States, but for economic reasons, "says Ghent.
However, their study does point out that in the states where housing is the only guarantee the chances of falling into default are higher. Professor Michelle White is completing research that explains, concludes that "it is more difficult to obtain mortgages in states where homeowners can prevent foreclosure through bankruptcy." The study also examines what effects studied measures such as the U.S. Congress in 2009 to reduce the mortgage in accordance with the market price of housing to determine that the granting of mortgages can vary by 10%. However, Celentani remember that "economic theory does not say that it is better to have more credit, but the right amount." "As Keynes said, the absolutists of contract are the real parents of revolution", riveted.
A Spanish law to restart
The European Commission has relocated to Spain duties based reforms. But nothing is what experts consider an "anomaly" within the continent. "How can a country like Spain, where the first problem is private debt, not have a system of individual bankruptcy proceedings?" Asks Professor of Civil Law at the Complutense University Cuena Matilde. With it coincides Carmen Reinhart of the Harvard Kennedy School, who believes that Spain should develop "domestic law" for running who go out of their mortgage debt, which would reduce the "private debt".
Today individuals can seek bankruptcy proceedings. But these-or against a bill that has put on the table the government, have nothing to do with what can be obtained in the rest of Europe. In Spain the contests, for example, do not allow to stop foreclosure. Of the deficiencies Spain contests numbers attest. In 2012, during the recession, only 1,100 people asked the old default. The figure is light years ahead of other countries. Of course, of the 1.36 million U.S. contests, the 105,000 in Germany and 173,000 in France.
University professor and researcher Carlos III Fedea, Marco Celentani, also supports the introduction of this procedure in Spain. Celentani rejects the moral hazard argument, ie that reward someone who has had a bad credit record or to favor "opportunistic behavior". All countries, he says, have the mechanism to detect "fraudulent bankruptcy". "It is quite true that in Spain there has been a poor payment culture", says Professor with reference to the default data, which point to the authorities and businesses, especially real estate, as the worst offenders, and individuals as the most punctual with their payments.
Luis Barriga, State Association Directors and Managers of Social Services is committed to a process similar to that of France. To clean up debts, the individual resorts to first through mediation. Should this fail, the case goes to court, but with a commission report that intervenes before.
Matilde Cuena believes that fresh start is a measure of "economic policy" that even possible to reduce the public deficit. This is because the current system leads debtors to the economy since run the debtor's assets, future assets responds. If the debtor "back" all proceeds will eat the old debt, so it has no incentive to work or other activity to restart. Cuena criticism that the measure was passed almost the last reform of the Bankruptcy Act, October 2011, and PP and PSOE agreed to an amendment to the legal treatment delayed the insolvency of families which should take place within of six months, which has not been met and that despite both parties gathered such electoral reform programs submitted for the elections to be held a month later. LLUIS PELLICER
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