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Universul Juridic magazin

Some considerations about the incidence of art. 36 provisions from law no. 85/2006 concerning the insolvency procedure in case of forced execution of fidejussor debtor being in insolvecy and the proces of validating the wage garnishment in case of insolvent estate debtor

Suspension doesn’t operates on enforcement proceedings commenced by creditors against the personal assets of the debtor fidejussor or persons who meet the obligations secured by the debtor’s actual bail. For recovery of the debt, the creditor may pursue the fidejussor under the provisions of art. 2296 of the new Civil code, can stand all defenses that you may claim as the main debtor, except those which are personal to the latter. From the interpretation of previous results, however, that fidejussor can cripple the enforcement of creditor initiated against him by invoking art. 36 of Law no. 85/2006, as the insolvency of the debtor is a purely personal matter of the latter. In other words, the fidejussor doesn’t make the suspension of the lender initiated foreclosure against him in order to make debt, the suspension provided by art. 36 of Law no. 85/2006. This does not mean that the right of the fidejussor defense is violated. The fidejussor has to invoke any defenses and exceptions inherent obligations of the debtor, such as the validity of the principal obligation, its extent, contract terms, etc.\r\nValidation of garnishment is a legal operation, who involves checking and confirming garnishment by a judgment, which is called validation judgment creditor enforcement against third party withheld. Because after trial\r\nvalidation application by the judgment of validation, it is a title against third party withheld judgment such request should be suspended in accordance with art. 36 of Law no. 85/2006, as the basis of this new enforcement, the lender will not pursue third execution of the insolvent debtor. Thus, no prejudice to any assets of the debtor and any creditors broke enrolled at the table credible.