No-asset insolvency in Spain: a creditor seeks an administrator and objects

The case, in five lines

What is brought

Defending the debtor against the application to appoint an administrador concursal (insolvency practitioner) in a no-asset insolvency (arts. 37 ter and 37 quater of the TRLC, the consolidated text of the Insolvency Act) and against the practitioner's report; applying for the exoneración del pasivo insatisfecho (discharge of unpaid debts) within ten days (art. 501.1); and answering the creditor's opposition, which is decided in an incidente concursal (ancillary proceedings within the insolvency case) (art. 502.2).

Before which court

The Sección de lo Mercantil del Tribunal de Instancia (commercial section of the court of first instance) that declared the insolvency, the one for the place where your centre of main interests lies: the practitioner is requested there, the discharge application is filed there and the opposition is decided there. An appeal against the judgment in the ancillary proceedings is decided by the Audiencia Provincial (provincial appeal court).

Deadline

Fifteen days, from the day after the notice is published, for creditors to request a practitioner (art. 37 ter.1); one month from acceptance of the appointment for the report (art. 37 quater.1); ten days to apply for discharge, from the expiry of the creditors' period without a request or from the issue of a report finding no signs (art. 501.1); ten days for the insolvency practitioner and the creditors who have appeared in the proceedings to make submissions (art. 501.4); and twenty days from notification to appeal the judgment in the ancillary proceedings.

Who can bring it

Only the creditor or creditors representing at least five per cent of the debts may request a practitioner, and they do so through their own lawyer and procurador (court representative). The discharge may be opposed by the insolvency practitioner, if one was appointed, and by the creditors who have appeared in the proceedings (art. 501.4). You always act through a lawyer and a procurador, whom we provide.

Financial risk

If the report finds signs, the insolvency stops being a no-asset case: a supplementary order, liquidation, rescission claims against what was sold or given away and, if the insolvency is classified as culpable, no discharge (art. 487.1.3.º). If the opposition succeeds and the judgment becomes final, you remain liable for the debts and creditors may enforce against you again (art. 484). The discharge is granted by the judge.

Fifteen days from the notice: the period that decides whether anyone investigates

In a concurso sin masa (no-asset insolvency), the order declaring the insolvency does not appoint an administrador concursal (insolvency practitioner). The judge declares the insolvency, stating the debts shown by the documents, ‘with no further rulings’, and orders its publication in the supplement of the Tablón Edictal Judicial Único (the single judicial notice board) of the BOE and in the Registro público concursal (public insolvency register) (art. 37 ter.1 TRLC). That publication is a call: the creditor or creditors representing at least five per cent of the debts have fifteen days, counted from the day after the notice is published, to ask for a practitioner to be appointed to investigate.

The judge does not decide whether the creditor's suspicions are justified. If the request arrives in time and whoever signs it reaches five per cent, art. 37 quater.1 requires the judge to appoint the practitioner by order, to set in that same order the practitioner's fee for the report and to charge it to the creditor or creditors who asked for it. That is why the defence at this stage does not argue the merits: it checks the publication date, the date of the request and whether the applicant's claim, or the sum of those signing together, reaches five per cent of the debts stated in the order.

What nobody tells you is what it means when someone asks. The creditor has to appear through its own lawyer and procurador (court representative) and pay the practitioner out of its own pocket, with no guarantee of recovering anything. Whoever takes on that cost usually has something specific in mind: a sale, a gift, some transfers. If nobody asks within the fifteen days, you may apply for the exoneración del pasivo insatisfecho (discharge of unpaid debts) within the following ten (arts. 37 ter.2 and 501.1); if someone does ask, that period no longer runs from then but from the report, and it pays to know from day one what the practitioner will be looking for.

What the practitioner examines, and what falls outside the report

The report must be reasoned and documented and covers only three points (art. 37 ter.1): whether there are sufficient signs of acts detrimental to the insolvency estate that can be rescinded, whether there are sufficient signs for a company's own liability claim against the directors of an insolvent legal person, and whether there are sufficient signs that the insolvency could be classified as culpable. The second does not concern you as an individual. The practitioner has one month from accepting the appointment to issue it (art. 37 quater.1).

Acts detrimental to the insolvency estate carried out in the two years before the insolvency application, and those carried out between the application and the declaration, may be rescinded even without any intention to defraud (art. 226.1). The law presumes the detriment, with no evidence to the contrary admitted, for gratuitous dispositions, such as a gift to a child, other than customary gifts (art. 227). And it presumes it, unless proved otherwise, for sales and other transactions for value in favour of persons especially related to you, such as your spouse or close relatives, and for security interests created to secure debts that already existed (art. 228).

An insolvency is culpable when wilful misconduct or gross negligence by the debtor played a part in causing or worsening it (art. 442). What the report does not do is take an inventory of your assets to see whether ‘an estate turns up’: the law does not give the practitioner that task. But the practical effect is similar, because if any of the signs is found the insolvency stops being a no-asset case. That is why the real examination looks at your transactions over recent years, not at what you own today, and that is where the defence is prepared.

Cooperating at once: the duty that weighs most on your discharge

Art. 37 quater.2 requires the debtor to provide ‘immediately’ all the information the practitioner asks for in order to prepare the report. It is not a courtesy: failing to meet the duties of cooperation and information towards the judge and the insolvency practitioner is one of the grounds that bar discharge (art. 487.1.5.º). A delay, a half answer or a missing bank statement can end up being the ground for opposition, even if the transaction under investigation was clean.

Our strategy is to get ahead. Before the first request arrives we prepare a dossier with the statements of all your accounts for the last two years, every significant sale or transfer with its supporting document, and a written explanation of why it was made. If you sold the car to your brother, what decides the point is the market price at the time and the bank trail of the payment; if you helped a relative, whether it was a customary gift or a donation. Explained in time and with paperwork, what looked like concealment usually turns out to be an ordinary transaction.

You do not have to deal with the practitioner on your own or give access to anything with your digital certificate: you send us the documents and we deliver them with an index, keeping a record of the date of each delivery. What nobody tells you is that this record is your best evidence later on: if the creditor alleges a lack of cooperation in its opposition, the answer is the list of what was delivered and when.

If the report finds signs: supplementary order and liquidation

If the practitioner finds any of the signs, the judge issues a supplementary order with the remaining rulings of the insolvency declaration and opens the liquidation phase of the insolvency estate (art. 37 quinquies.1). From then on the insolvency follows the general rules. The practitioner has two months from filing the report to bring the rescission claims; if the practitioner does not, the creditors who requested the appointment may bring them within the following two months (art. 37 quinquies.2). Whatever those claims recover will go towards paying the creditors.

That does not close the door on discharge, but it changes the route: after liquidation, it is applied for within the hearing period given to the parties to object to the closure of the insolvency (art. 501.2). The serious risk lies in the classification. If the insolvency is declared culpable there is no discharge, unless that was solely for filing late, in which case the judge may take the circumstances of the delay into account (art. 487.1.3.º); and until the classification is final, the judge suspends the decision on discharge (art. 487.2). The duty to file for insolvency runs for two months from when you knew or should have known you were currently insolvent (art. 5.1), and it is often the first thing examined.

What nobody tells you is that, as long as liquidation has not been ordered, there is another route: discharge subject to a payment plan, which may be applied for at any time before liquidation is ordered (art. 495) and does not require the insolvency estate to be liquidated (art. 486.1.º). If what is being investigated is an asset that could return to your estate, we compare the two routes before the report is on the table, because after the supplementary order that door closes.

If the report is clean: ten days to apply and ten to object

If the practitioner finds no sufficient signs, you have ten days to apply for discharge of unpaid debts, and art. 501.1 counts them from the issue of the report, not from when it reaches you. The application must state that you are not caught by any ground that bars discharge and must enclose your personal income tax (IRPF) returns for the last three years, whether filed or due to have been filed (art. 501.3). We have it ready during the month of the report so that it can be filed as soon as the report is issued.

The letrado de la Administración de Justicia (court registrar) forwards the application to the insolvency practitioner and to the creditors who have appeared, who have ten days to make submissions (art. 501.4). If they agree or do not object in time, the judge grants discharge in the decision declaring the insolvency closed, but only after verifying that the conditions and requirements are met (art. 502.1). A clean report does not bind the creditor: it may still object, on the same facts or on others.

Not even everyone's silence guarantees the outcome. The Tribunal Supremo (Supreme Court), in its judgments 259/2026, 261/2026, 262/2026 and 263/2026 of 18 February, has held that good faith means the absence of the grounds in art. 487.1, that the judge checks it of the court's own motion even if nobody objects, and that it is for the debtor to provide the information, including the origin of debts that were out of proportion to the debtor's income at the time. Applying that case law, an order of the Sección de lo Mercantil del Tribunal de Instancia of Las Palmas de Gran Canaria, publicised by the Consejo General del Poder Judicial (General Council of the Judiciary) in March 2026, refused discharge to a person with no assets and no opposition because they did not prove what income they had when taking on each debt or what information they gave the lenders.

The opposition is decided in ancillary proceedings and appealed to the provincial court

The opposition may only be based on the absence of one of the conditions and requirements laid down by law (art. 502.2): one of the grounds in art. 487.1, such as false information or reckless or negligent borrowing, lack of cooperation or a culpable insolvency, or the bar in art. 488 if you already obtained a discharge less than five years ago after liquidation, or less than two after a payment plan. General suspicions are not enough, because the list is closed. The opposition is heard as an incidente concursal (ancillary proceedings within the insolvency case), in which you answer through a lawyer and a procurador and with evidence on each debt.

On borrowing, the judge weighs four things: the financial information you gave the lender before the loan, your social and professional standing, the personal circumstances of the over-indebtedness and, if you are a business owner, whether you used the public early-warning tools (art. 487.1.6.º). The answer reconstructs each loan: what you earned, what you declared, what the lender checked and what happened afterwards. If the objecting creditor lent to you without looking at your creditworthiness, that is said too, with its own paperwork.

The ancillary proceedings end in a judgment, against which an appeal lies to the Audiencia Provincial (provincial appeal court); it is lodged within twenty days of notification directly with that court and, in insolvency matters, has priority: it must be decided within two months of the court receiving the case file. In the meantime the insolvency is not closed (art. 502.3). If discharge is finally refused, you remain liable for the debts and creditors may enforce against you again (art. 484). And a warning that applies to the whole case: the Tribunal Supremo, in its judgments 254/2026 and 260/2026 of 18 February, has held that discharge only reaches the debts the debtor listed, so an incomplete list of creditors leaves debts alive even if you win.

How we run the case, step by step

1. 1

   A timetable from the notice

   With the date of publication in the BOE we fix the last of the creditors' fifteen days and the last of the ten days to apply for discharge. Our procurador (court representative) watches every filing that comes into the court.

2. 2

   Check the creditor's request

   We check that it arrived in time, that the applicant, or those signing together, reach five per cent of the debts stated in the order and that they appear through a lawyer and a procurador. The appointment order states the remedy available against it: we review it on the day it is served.

3. 3

   A dossier of the last two years

   We gather the statements of all your accounts and every significant sale, gift or transfer from two years before the insolvency application, with supporting documents and a written explanation. You send us the documents; you need no digital certificate or Cl@ve (the government login system).

4. 4

   Delivery to the practitioner, on record

   We answer every request at once, with an index and delivery date, and if the practitioner points to a sign we provide the evidence that rebuts it before the report is closed. During that month we also assess whether it is advisable to apply for discharge with a payment plan before liquidation is ordered.

5. 5

   Discharge application within ten days

   From the issue of a report finding no signs, we file the application with your statement that no excluding ground applies to you, which you sign on our platform, and your IRPF returns for three years. If you do not have them, you can request copies in person at a tax agency (Agencia Tributaria) office by appointment, without a certificate.

6. 6

   Answer to the opposition and appeal

   In the ancillary proceedings we answer debt by debt with the evidence. If the judgment goes against you, we appeal to the Audiencia Provincial within twenty days; if it goes your way and the creditor appeals, we oppose that appeal.

The law that applies

• Arts. 37 bis y 37 ter TRLC. There is a no-asset insolvency if the debtor has no attachable assets, if realising them would cost manifestly more than their value, if the unencumbered ones are worth less than the cost of the proceedings or if the charges exceed their market value. The order declares the insolvency with no further rulings, is published in the BOE and the public insolvency register and calls on creditors holding five per cent of the debts to request a practitioner within fifteen days from the day after the notice is published, for a report on voidable acts, the company's liability claim and culpable classification. If nobody asks, an individual debtor may apply for discharge. BOE-A-2020-4859
• Art. 37 quater TRLC. If creditors representing at least five per cent of the debts ask in time, the judge appoints the practitioner by order, and the report is issued within one month of acceptance. The same order sets the fee, which is paid by the creditors who asked. The debtor must immediately provide the information requested. BOE-A-2020-4859
• Art. 37 quinquies TRLC. If the report finds signs, the judge issues a supplementary order with the remaining rulings and opens liquidation. The practitioner brings the rescission and company liability claims within two months of the report and, failing that, the requesting creditors may do so within the following two months. BOE-A-2020-4859
• Arts. 226, 227 y 228 TRLC. Acts detrimental to the insolvency estate in the two years before the insolvency application and those after it up to the declaration may be rescinded, even without intent to defraud. Detriment is presumed conclusively for gratuitous acts, other than customary gifts, and rebuttably for transactions for value with especially related persons and for security interests securing pre-existing debts. BOE-A-2020-4859
• Arts. 5 y 442 TRLC. The debtor must file for insolvency within two months of the date on which they knew or should have known they were currently insolvent. An insolvency is culpable when wilful misconduct or gross negligence by the debtor played a part in causing or worsening it. BOE-A-2020-4859
• Art. 487 TRLC. It lists the grounds that bar discharge: certain final convictions and penalties within ten years, a derivative liability ruling, a culpable insolvency, having been an affected person in a third party's culpable insolvency, breaching the duties of cooperation and information, and false information or reckless or negligent borrowing, which the judge assesses against four criteria. If the classification is not final, the decision is suspended. BOE-A-2020-4859
• Arts. 501 y 502 TRLC. In a no-asset insolvency, discharge is applied for within ten days of the expiry of the creditors' period without a request or of a report finding no signs, with a statement that no excluding ground applies and three years of IRPF returns; the application is forwarded for ten days to the practitioner and the creditors who have appeared. Without opposition, the judge grants it after verifying the requirements when declaring the insolvency closed; opposition may only rest on missing requirements, is decided as ancillary proceedings, and the insolvency is not closed until that decision is final. BOE-A-2020-4859
• Arts. 484 y 488 TRLC. Once the insolvency is closed for liquidation or insufficient assets, the individual debtor remains liable for the unpaid claims unless discharge is obtained, and creditors may bring individual enforcement actions. A new discharge requires two years from a final discharge with a payment plan or five from one granted with liquidation, and it never reaches public-law debt. BOE-A-2020-4859

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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