No return to better fortune
No return to better fortune
"In your previous column, you mentioned the exception of non-return to better fortunes that a debtor must raise if his creditor initiates new proceedings against him on the basis of a post-bankruptcy deed of default. How exactly does this procedure work?
Jean-Paul
According to articles 265 et seq. of the LP, after a bankruptcy, a debtor may be re-sued by a creditor with a certificate of default if he has returned to better circumstances. If the debtor does not dispute the debt but does not have the means to pay it, he may raise the plea of no return to better fortunes and object to the debt collection proceedings, stating his reasons. The debt-collection office then forwards the case to the judge, who hears the parties and verifies whether the exception of no better fortunes appears to be well-founded.
According to case law, a return to better fortunes occurs if the debtor has reconstituted assets that enable him to live more comfortably than on the minimum subsistence level. It is therefore not enough for the debtor to have minimum resources; he or she must also be able to build up modest savings and have a lifestyle suited to his or her new situation. In order to assess whether or not the debtor has returned to a better situation, the judge will take into account any contribution made by the spouse towards household expenses.
It is up to the debtor to show that his income and assets have not improved significantly, by providing concrete evidence such as salary certificates, tax returns or bank statements. If the judge considers that the debtor has not improved his situation, he will declare the objection admissible and the debt collection proceedings will be suspended. If, on the other hand, the judge accepts that new assets have been created, the debtor's objection will be declared inadmissible and the judge will specify which part of the earnings constitutes new assets that may be seized.
The no-return-to-better-fortune exception is thus a kind of privilege granted to a person who has embarked on a business venture, without unfortunately achieving the success hoped for, to enable him to build a new existence without constantly being the subject of new lawsuits from creditors who have suffered as a result of the bankruptcy.
