The Supreme Court has confirmed the conviction for seizure of assets of a couple and one of their daughters for donating their habitual residence to her and her sister, a minor, when there was already a judicial execution for non-payment. Considers it proven that the donation was a fraudulent act of disposition, intended to frustrate the collection of the debt and avoid seizure, and confirms that it must annul the deed of donation and cancel the transfer in the property registry.
According to the ruling of February 1, 2024, in 2016 the parents They donated the family home to their daughters without receiving any compensation. The operation was carried out when there was already a judicial procedure open to claim the debt, and the home was identified as the asset on which collection could be made. Furthermore, it was the only valuable property they had.
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The defense alleged that there was no intention to defraud the creditor, that they had other assets such as vehicles or pension plans and that the act responded to the father’s “delicate emotional state.” They also questioned whether the donation could be annulled with respect to the youngest daughter, as she was not part of the procedure. But the courts did not validate these arguments, they considered that the remaining assets were not accredited or available to meet the debt, and that the minor was duly represented by her parents at the time of executing the deed.
The court and the Court saw clearly the intention to avoid the embargo
The Criminal Court No. 2 of Cáceres condemned the couple as perpetrators of a crime of taking property under article 257.1.1 of the Penal Code, and the eldest daughter as a necessary cooperator. In his sentence, he imposed sentences of eight months in prison and a fine, in addition to declaring the donation null and void and ordering its cancellation from the registry.
The Provincial Court of Cáceres confirmed the same, considering that the donation was made with the sole purpose of preventing Banca Pueyo from foreclosing on the property assigned to the debt, and that there was no evidence that the defendants had sufficient alternative assets. According to his ruling, the operation was “an act of conscious and malicious asset depletion,” executed knowing that the property was the only asset with which to respond to the credit.
The Supreme Court confirms that it was a simulated donation made to hide the asset
The Supreme Court confirmed the seizure of assets, highlighting that the property was transferred “with the intention of harming the creditor”, complying with all the requirements of article 257.1.1º of the Penal Code, which sanctions acts of disposal that “make the right of credit illusory.”
The High Court highlighted that total insolvency is not necessary for there to be an uprising. It is enough that the debtor’s conduct hinders or prevents the creditor’s execution, as occurred in this case. “The lack of assets with which to pay the debt was directly caused by the fraudulent transfer of the property,” the ruling states.
Regarding the minor, the Supreme Court rejects that there was defenselessness, since she was legally represented by her parents at the time of the donation. Furthermore, it qualifies the act as an absolute negotiation simulation, as it lacks a legitimate cause and was done with the sole purpose of subtracting the benefit of the judicial procedure.
For all these reasons, the Supreme Court confirmed the nullity of the deed of donation, the cancellation of the property’s registry and the penalties imposed.