The Financial Rehabilitation and Insolvency Act of 2010

The Purpose and Scope of the FRIA Law

To encourage debtors, both juridical and natural persons, and their creditors to collectively and realistically resolve and adjust competing claims and property rights, Republic Act No. 10142, or otherwise known as the Financial Rehabilitation and Insolvency Act of 2010 (“FRIA”) was enacted.

Basically, FRIA is a law which governs the rehabilitation or liquidation of debtors, may it be a sole proprietorship, partnership, corporation or an individual debtor. It guarantees a timely, fair, transparent, effective and efficient rehabilitation or liquidation of debtors.

Under this law, rehabilitation refers to the restoration of the debtor to a condition of successful operation and solvency. When rehabilitation is not feasible, it is in the interest of the State to facilitate a speedy and orderly liquidation of these debtor’s assets and the settlement of their obligations. On the other hand, liquidation is a process by which assets are converted to cash.

The proceedings involved under FRIA are considered as in rem, which means that it binds the whole world. Jurisdiction over all persons affected by the proceedings shall be considered as acquired upon publication of the notice of the commencement of the proceedings in any newspaper of general circulation in the Philippines.

The definition of a debtor is important to be able to determine if the parties may avail of the proceedings provided by FRIA. The term debtor covers a sole proprietorship duly registered with the Department of Trade and Industry (DTI), a partnership duly registered with the Securities and Exchange Commission (SEC), a corporation duly organized and existing under Philippine laws, or an individual debtor who has become insolvent.

However, the term debtor does not include banks, insurance companies, pre-need companies, and national and local government agencies or units.

Rehabilitation under the FRIA Law

Rehabilitation under the FRIA Law

Rehabilitation refers to the restoration of the debtor to a condition of successful operation and solvency, if it is shown that its continuance of operation is economically feasible and its creditors can recover by way of the present value of payments projected in the plan, more if the debtor continues as a going concern than if it is immediately liquidated.

There are three types of rehabilitation, namely:

1. Court-supervised rehabilitation
2. Pre0negotiated rehabilitation; and
3. Out-of-court/Formal Restructuring

Court-Supervised Rehabilitation

Court-supervised rehabilitation may be initiated through voluntary proceedings or involuntary proceedings.

A.1.a. Voluntary Proceedings

Voluntary Proceedings may be initiated by an insolvent debtor through filing a petition for rehabilitation with the court and on the grounds provided under the FRIA.

The filing of the petition for rehabilitation must be approved by the owner in case of a sole proprietorship, or by a majority of the partners in case of a partnership, or in case of a corporation, by a majority vote of the board of directors or trustees and authorized by the vote of the stockholders representing at least two-thirds (2/3) of the outstanding capital stock, or in case of nonstock corporation, by the vote of at least two-thirds (2/3) of the members, in a stockholder’s or member’s meeting duly called for the purpose.

A group of debtors may jointly file a petition for rehabilitation when one or more of its members foresee the impossibility of meeting debts when they respectively fall due, and the financial distress would likely adversely affect the financial condition and/or operations of the other members of the group and/or the participation of the other members of the group is essential under the terms and conditions of the proposed Rehabilitation Plan.

Rehabilitation Plan shall refer to a plan by which the financial well-being and viability of an insolvent debtor can be restored using various means including, but not limited to, debt forgiveness, debt rescheduling, reorganization or quasi-reorganization, dacion en pago, debt-equity conversion and sale of the business (or parts of it) as a going concern, or setting-up of new business entity, or other similar arrangements as may be approved by the court or creditors.

A.1.b. Involuntary Proceedings

Any creditor or group of creditors with a claim of, or the aggregate of whose claims is, at least One Million Pesos (Php1,000,000.00) or at least twenty-five percent (25%) of the subscribed capital stock or partners’ contributions, whichever is higher, may initiate involuntary proceedings against the debtor by filing a petition for rehabilitation with the court if:

(a) there is no genuine issue of fact on law on the claim/s of the petitioner/s, and that the due and demandable payments thereon have not been made for at least sixty (60) days or that the debtor has failed generally to meet its liabilities as they fall due; or

(b) a creditor, other than the petitioner/s, has initiated foreclosure proceedings against the debtor that will prevent the debtor from paying its debts as they become due or will render it insolvent.

A. 2. Pre-negotiated Rehabilitation

The second way of rehabilitation is the pre-negotiated. Under this preceding, an insolvent debtor, by itself or jointly with any of its creditors, may file a verified petition with the court for the approval of a pre-negotiated Rehabilitation Plan which has been endorsed or approved by creditors holding at least two-thirds (2/3) of the total liabilities of the debtor, including secured creditors holding more than fifty percent (50%) of the total secured claims of the debtor and unsecured creditors holding more than fifty percent (50%) of the total unsecured claims of the debtor.

A.3. Out-of-court or Informal Restructuring Agreements or Rehabilitation Plans

For an out-of-court or informal restructuring/workout agreement or Rehabilitation Plan to qualify, it must meet the following minimum requirements:

1. The debtor must agree to the out-of-court or informal restructuring/workout agreement or Rehabilitation Plan;
2. It must be approved by creditors representing at least sixty-seven (67%) of the secured obligations of the debtor;
3. It must be approved by creditors representing at least seventy-five percent (75%) of the unsecured obligations of the debtor; and
4. It must be approved by creditors holding at least eighty-five percent (85%) of the total liabilities, secured and unsecured, of the debtor.

What is a Standstill Period?

A standstill period, which does not exceed one hundred twenty (120) days from the date of effectivity, is a period that may be agreed upon by the parties pending negotiation and finalization of the out-of-court or informal restructuring/workout agreement or Rehabilitation Plan.

The agreement must be approved by creditors representing more than fifty percent (50%) of the total liabilities of the debtor and notice thereof is published in a newspaper of general circulation in the Philippines once a week for two (2) consecutive weeks.

The standstill period shall be effective and enforceable not only against the contracting parties but also against the other creditors.

Who is a rehabilitation receiver and what are his or her qualifications?

A rehabilitation receiver shall refer to the person or persons, natural or juridical, appointed as such by the court and which shall be entrusted with such powers and duties.

The rehabilitation receiver shall have the following minimum qualifications:

• A citizen of the Philippines or a resident of the Philippines in the six (6) months immediately preceding his nomination;
• Of good moral character and with acknowledged integrity, impartiality and independence;
• Has the requisite knowledge of insolvency and other relevant commercial laws, rules and procedures, as well as the relevant training and/or experience that may be necessary to enable him to properly discharge the duties and obligations of a rehabilitation receiver; and
• Has no conflict of interest: Provided, That such conflict of interest may be waived, expressly or impliedly, by a party who may be prejudiced thereby.

What is management committee and its qualifications?

The management committee shall take the place of the management and the governing body of the debtor and assume their rights and responsibilities.

The qualifications and disqualifications of the members of the management committee shall be set forth in the procedural rules, taking into consideration the nature of the business of the debtor and the need to protect the interest of all stakeholders concerned.

Liquidation

Liquidation is the process by which assets are converted to cash. A liquidator is a natural person or juridical entity appointed as such by the court and entrusted with such powers and duties as set forth under the FRIA. If the liquidator is a juridical entity, it must designate a natural person who possesses all the qualifications and none of the disqualifications as its representative, it being understood that the juridical entity and the representative are solidarity liable for all obligations and responsibilities of the liquidator.

Liquidation can be voluntary or involuntary.

Voluntary Liquidation

In Voluntary Liquidation, an insolvent debtor may apply for liquidation by filing a petition for liquidation with the court. The petition shall be verified, shall establish the insolvency of the debtor and shall contain, whether as an attachment or as part of the body of the petition:

• a schedule of the debtor’s debts and liabilities including a list of creditors with their addresses, amounts of claims and collaterals, or securities, if any;
• an inventory of all its assets including receivables and claims against third parties; and
• the names of at least three (3) nominees to the position of liquidator.

At any time during the pendency of court-supervised or pre-negotiated rehabilitation proceedings, the debtor may also initiate liquidation proceedings by filing a motion in the same court where the rehabilitation proceedings are pending to convert the rehabilitation proceedings into liquidation proceedings.

If the petition or the motion, as the case may be, is sufficient in form and substance, the court shall issue a Liquidation Order. An individual debtor whose properties are not sufficient to cover his liabilities, and owing debts exceeding Five hundred thousand pesos (Php500,000.00), may apply to be discharged from his debts and liabilities by filing a verified petition with the court of the province or city in which he has resided for six (6) months prior to the filing of such petition. He shall attach to his petition a schedule of debts and liabilities and an inventory of assets. The filing of such petition shall be an act of insolvency.

Involuntary Liquidation

In case of Involuntary Liquidation, three (3) or more creditors the aggregate of whose claims is at least either One million pesos (Php1,000,000,00) or at least twenty-five percent (25%) of the subscribed capital stock or partner’s contributions of the debtor, whichever is higher, may apply for and seek the liquidation of an insolvent debtor by filing a petition for liquidation of the debtor with the court. The petition shall show that:

• there is no genuine issue of fact or law on the claims/s of the petitioner/s, and that the due and demandable payments thereon have not been made for at least one hundred eighty (180) days or that the debtor has failed generally to meet its liabilities as they fall due; and
• there is no substantial likelihood that the debtor may be rehabilitated.

At any time during the pendency of or after a rehabilitation court-supervised or pre-negotiated rehabilitation proceedings, three (3) or more creditors whose claims is at least either One million pesos (Php1,000,000.00) or at least twenty-five percent (25%) of the subscribed capital or partner’s contributions of the debtor, whichever is higher, may also initiate liquidation proceedings by filing a motion in the same court where the rehabilitation proceedings are pending to convert the rehabilitation proceedings into liquidation proceedings.

In case of an individual debtor, involuntary liquidation takes place when a creditor or group of creditors with a claim of, or with claims aggregating at least Five hundred thousand pesos (Php500, 000.00) files a verified petition for liquidation with the court of the province or city in which the individual debtor resides.

About Nicolas and De Vega Law Offices

If you need assistance in financial rehabilitation, corporate insolvency or have issues in corporate law, commercial law, corporate or commercial litigation including One Person Corporations, or civil or other criminal law-related issues,  we can help you. Nicolas and de Vega Law Offices is a full-service law firm in the Philippines.  You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines.  You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at [email protected]. Visit our website https://ndvlaw.com.