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Adaugat in data de 04-09-2011

Reff & Associates: The new Civil Code will considerably influence the lender - borrower relationship

Reff & Associates: The new Civil Code will considerably influence the lender - borrower relationship Starting October 1, when the new Civil Code comes into force, the banks and non-banking financial institutions will benefit of new instruments which may provide new tools in structuring lending transactions. On the other hand, the lawyers of Reff & Associates warn that some of the new legal provisions are unclear or incomplete, triggering interpretation risks which may diminish the overall level of protection offered by law to secured creditors. At the same time, the new code provides borrowers with additional rights (the corporate segment included), thus enhancing their position compared to current regulations.

“The new Civil Code will bring significant changes in the lender – borrower relationship,” underlines Simina Mut, Managing Associate with Reff & Associates. “We can only wait for the practice to develop, and the doctrine and jurisprudence to bring further clarity over the new regulations, so that to better assess its impact. The following period will be marked by a certain level of uncertainty, and successive changes of the new Civil Code should not be excluded.”

According to the new Civil Code, certain clauses currently included in the loan and security documentation will from now on benefit of statutory character.

“So far, these practices have been based on the freedom of contract; time will tell if the new regulations will actually lead to limitation of rights for the parties negotiating a contract. Banks and borrowers must thoroughly consider the impact of the new Civil Code on existing loan and security agreements, publicity formalities etc.” adds Simina Mut.


According to Andrei Burz-Pînzaru, Head of the Banking & Finance practice in Reff & Associates, “The new Civil Code has a direct impact on the contractual terms and their interpretation in loan and security documents. Besides the technical aspects requiring a full revisiting of the standard finance documents in order to secure their enforceability under the new Code, it will be interesting to see the business impact on the loan negotiation process in a period which is anyway extremely challenging for the whole banking community. Personally I believe the most spectacular impact would arise if lenders will implement the newly introduced legal instrument of fiducie, which could allow creditors to utilize as security this Romanian equivalent of the ‘trust’ – a concept which is more specific to common law jurisdictions like the UK or the US. Notably, this concept did not appear historically as a security instrument, but it presents interesting (and challenging) features which can turn it from an asset management tool into a security tool. On the other hand, the potential utilisation of this legal structure as security is likely to raise significant commercial problems and most likely would not be welcomed by the borrowers.”

Once the new Civil Code comes into effect, banks will have to grant borrowers a minimum 15-day term for reimbursing the loan, if the creditor unilaterally terminates the contract. Moreover, unless specified otherwise, banks will be able to unilaterally terminate credit contracts only based on solid grounds related to the beneficiary of the credit facility.

Enforcement of movable mortgages may become problematic since under the new Civil Code challenging enforcement proceedings suspends by law the sale process until the court definitively solves the matter. In addition, while up to now the debtor, other creditors with security over the same asset and the owner thereof could have challenged enforcement proceedings, the new Code provides for the right to challenge (subject to proving interest) also to guarantors, joint debtors as well as any person who notified the existence of an interest or of a claim related to the asset subject to enforcement.

The new Civil Code introduces the concept of “perfection of mortgages”, which means, in the first place, that the registration in the electronic archive will no longer be sufficient to ensure effectiveness and enforceability towards third parties of security interests over movable assets.

Regarding bank accounts, the new Code provides for the owner’s right to freely dispose of the amounts in its current account, following prior notification to the account bank if this has been agreed in the contract. Depending on the interpretation thereof, this provision might be used by borrowers as grounding for their refusal to observe the contractual requirements related to the purpose of the loans.

Another new concept related to bank accounts is the “control over the account” – as an alternative means to ensure enforceability towards third parties of the security, without registration in the archive. Based on the new code, the mortgage of the creditor having control over the account is preferred to the mortgage of a creditor that does not have control over the account. This new concept may lead to significant issues in case of security over accounts held by borrowers with other banks than the creditor and may extend the practice of banks to impose restrictions on borrowers’ with respect to opening accounts with other banks.

The above are only a few of the changes that the new Civil Code will bring in the banking sector; in reality the changes span a wider range, from the elimination of the security interests over movable assets (garantii reale mobiliare) - replaced by “movable mortgages” and the repealing of Title VI from the 99/1999 law, to the regulation of trusts through the fiducia agreement.

www.Codcivil2011.ro aimed at analyzing the novelties brought by the new Civil Code from the practitioner’s angle, that of the code’s direct business impact. The website will be constantly updated with analyses on the new regulations and their effects over various activities, as well as practical information.

Reff & Associates is the correspondent law firm of Deloitte Romania, integrated with the Deloitte multi-disciplinary advisory practice and affiliated to a network of law firms and legal departments working with Deloitte all over the world. The professionals working with Reff & Associates have significant experience in high level transactions, in which complex matters are addressed from cross-border and multi-disciplinary perspective. The multi-disciplinary experience of legal professionals allows them to provide, together with other Deloitte professionals, a complete answer to the needs of their clients. They propose state-of-the-art services relying not only on legal and regulatory expertise but also on the use of innovative processes. Their global and systematic approach allows clients to integrate early in their strategy potential legal issues, thus anticipating and preventing legal risks and minimizing the disruption of business operations.

The 2011 edition of Legal 500 Europe, Middle East & Africa ranks Reff & Associates alongside leading law firms, and particularly recommends its lawyers for their expertise in Banking & Finance, Corporate and M&A and Real Estate work. As quoted in the said Legal 500 edition, the clients appreciate Reff & Associates for the “excellent technical advice” and “ability to handle complex work to tight deadlines”. Reff & Associates was also recommended by the legal guide Chambers Europe 2011 for its M&A practice.

Deloitte refers to one or more of Deloitte Touche Tohmatsu Limited, a UK private company limited by guarantee, and its network of member firms, each of which is a legally separate and independent entity. Please see www.deloitte.com/ro/about for a detailed description of the legal structure of Deloitte Touche Tohmatsu Limited and its member firms.

Deloitte provides audit, tax, consulting, and financial advisory services to public and private clients spanning multiple industries. With a globally connected network of member firms in more than 140 countries, Deloitte brings world-class capabilities and deep local expertise to help clients succeed wherever they operate. Deloitte's approximately 169,000 professionals are committed to becoming the standard of excellence.
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Gunjan
Παραθέτω τα παρακάτω αποφθέγματα με την ελπίδα να εμπνεύσουν:\"Think you can, think you can\'t... either way you\'re right.\"\"There are many ways of going farrowd, but only one way of standing still.\" --Franklin D. Roosevelt\"If you wait for perfect conditions you will never get anything done.\" --Mike Seseed\"Behold the turtle. She makes progress only when she sticks her neck out.\" --James B. Conant\"Focus on the solution, not the problem.\"\"It is better to light one candle than curse the darkness.\" --Motto of the Christopher Society\"Even the longest journey begins with a single step.\"\"Don\'t judge those who try and fail. Judge only those who fail to try.\"\"The person who really wants to do something finds a way; the other finds an excuse.\"
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yR5PCq I really like and appreciate your blog article.Really thank you! Keep writing.
Ryan
Jim, dude, your post never mind, sigh.Yes, everyone is at fault. No one gaeuantred that prices would continue to increase. No one gaeuantred that unemployment would not reach record levels. No one gaeuantred that owners wouldnt have catastrophic health problems, etc. No one MADE them sign paperwork obligating them to the loan. What is our Governments obligation? Its of the people, for the people and by the people, correct? Problem is most citizens are ignorant sheep. Sorry but true. If the government really was OF the people, it would grind to a halt.The gov has become so separated from regular citizens that we have no control not clue about whats being done TO us or FOR us. The gov is corrupt beyond belief. The two largest SCAMS in human history have been the stock market fiasco and now the real estate fiasco. The stock market was nothing bgut lies. Peoples hope and greed were used by the few at the top to bilk zillions from the people. It created a new category of older people with no hope of retirement. At least many had their home equity to fall back on, right? Only for a while, bucko. The lenders started playing russian roulette with borrowers decades ago with the advent of FAKE LOANS. Stated income, graduated,super low start ARMS, etc. Why? Easy. They ran out of product for QUALIFIED borrwers. I should say they ran out of qualified borrwers for their traditional loan programs requiring SAFE underwriting. Hmmm what to do? Close the doors at that point or invent ways of making unsafe loans and letting the responsibility flow off their backs to the ultimate end investors and the PEOPLE through Fannie, pension funds, etc.This way they made huge profits for many years while waiting for the other shoe to drop. Boy did it drop. Real estate values today are not being lost! They are ADJUSTING to where they really would have been if only joe and jane average wage earner used safe qualifying numbers for a new loan. Joe and Jane are the backbone of the system. One can tell what real estate prices will be in any given area by the stats on what percentage of the surrounding populationthe Joes and Janes are, and what the prevailing wage is.OK my rant isnt fully on topic but related to it and your comments. Otherwise, I agree with the articlemessage that in make sense' cases the banks should work to turn these loans back into profitable paper. Marvin Von Renchler
Geralynn
I don't know who you wrote this for but you hpeeld a brother out.
Maliyah
If not for your wrtinig this topic could be very convoluted and oblique.
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