Security interests in Argentina and other legal tools to enforce collection of debts. A brief for foreign lenders

  1. Security interests

Security interests in Argentina may be structured through different agreements according to the nature of the assets included as collaterals.

The Civil and Commercial Code of the Nation (Código Civil y Comercial de la Nación or CCCN) makes a distinction between personal or movable property and real property or real estate (Articles Number 225 and following).

Real property[1] includes the real estate by its nature (the soil itself, its organically embedded things and those located without human intervention. CCCN, Article Number 225) and the real estate by accession (personal property immobilized by being physically attached to the soil with a lasting nature, with the exception of things inherent to the real estate´s operation or to the owner´s activity. CCCN, Article 226). Movable property includes those things that may move by themselves or by an external force (CCCN, Article Number 227).

Security interests grant the secured creditor a privilege or priority interest to collect the debt over the proceeds of the collateral above the claims of other creditors.

a. Security interests in real estate

Mortgages and antichresis may be used to create a security interest in real estate.

Mortgages may be created over a specific real estate, ship or aircraft. Mortgages over real estate are governed by Articles Number 2,205 through 2,211 of the CCCN. Mortgages over ships and aircraft are regulated by special legislation (the Shipping Law Number 20,094, Article Number 499 and followings, and the Aeronautical Code, Article Number 52 and followings).

Antichresis lies on real estate and registered personal property, whose possession is delivered to the creditor or an appointed third party, and allows the collection of the proceeds to pay out a debt (CCCN, article 2,212).

b. Security interests over movable property

Secured credits over movable property may be created through pledges or chattel mortgages.

Pledges involve the delivery of a certain debtor´s asset to the creditor or a designated third party (CCCN, Article Number 2,219). Movable property, credits (CCCN, Articles 2,232 through 2,237), cash, and shares (General Companies Law Number 19,550, as amended, Article Number 219) may be pledged.

Chattel mortgages allow the debtor to keep possession over the movable property and may be created by an Agrarian pledge or a registered pledge. Agrarian pledges are regulated by Law Number 9,644 and may be created on agricultural machinery, implements, and tools; animals, their products, and personal property devoted to rural operations; fruits and crops corresponding to the year in which the pledge is made and timber, mining products; and products of national industries (Article Number 2). Registered pledges are governed by Law Number 12,962 (Ley de Prenda), may fall on all kinds of movable assets and be fixed or floating over an inventory of goods.

  1. Guaranties

Guaranties, bonds or performance bonds are governed by Articles Number through 1,574 through 1,598 of the CCCN and are also common in financial transactions. A guaranty gives the creditor and additional person to pursue collection if the principal debtor defaults on payment. Unlike security interests, guaranties do not create a lien over any collateral in favor of the creditor.

  1. Governing law and jurisdiction

Parties to a loan agreement may choose the laws that will govern the contract with reference to their intrinsic validity, nature, effects, rights and obligations, either to regulate all of the agreement or only a part of it (CCCN, Article 2,651). They may also choose the forum to solve their disputes.

However, all issues related to real estate located in Argentina, including security interests, are governed exclusively by local laws (CCCN, Article Number 2,667); further, Argentine judges have exclusive jurisdiction to rule on disputes arising out of real estate located in the Country (CCCN, Articles Number 2,664 and 2,609, sub-article a)).

As far as movable property registered in Argentina is concerned, it is also governed by Argentine law (CCCN, Article 2,668) and is subject to the exclusive jurisdiction of Argentine courts (CCCN, Article Number 2,665). Unregistered movable property, which is permanently situated in a place and is not intended to be moved to a different jurisdiction is governed by the laws of the place where it is located (CCCN, Article Number 2,669) and there exists a concurrent jurisdiction between the judges of the defendant´s domicile and those of the place where the unregistered movable property is located.

Foreign judgments and arbitral awards may be enforced in Argentina following certain recognition conditions.

  1. Other legal tools to enforce performance

Further to security interests and guaranties, there are other legal tools the parties may choose to enforce performance of a loan agreement.

a) Trusts

Trusts are governed by Articles 1,666 through 1,700 of the CCCN) and may be used to secure debts, assigning certain assets to a trustee (e.g. real estate, movable property, receivables, etc.) as collaterals. Upon default, the trustee may sell the assets following the agreement´s provisions and, in the absence of stipulation, dispose of them either out of court or by judicial foreclosure (CCCN, Article 1,680). The assignment of the assets to the trustee creates a separate estate, immune to bankruptcy proceedings affecting the settlor, the trustee, or the beneficiaries.

b) Assignment of credits

Assignment of credits, including receivables, may also be executed to enforce payment of loan agreements (CCCN, Article Number 1,614 and following). Creditors may request payment to either the assignor or the debtor of the assigned credit.

  1. Reorganization and Bankruptcy procedures

Reorganization and Bankruptcy procedures in Argentina are governed by Law Number 24,522, as amended. Both procedures to deal with insolvency temporarily stays the enforcement of the loan agreement and impose certain procedural burdens upon the creditor. Furthermore, security interests and guaranties may be unenforceable when the debtor is adjudicated bankruptcy and the security interest or guaranty has been created within a certain “suspicion period” (período de sospecha) before the date of insolvency or bankruptcy.

  1. Some cross-border considerations on loans

There are no restrictions on foreign lenders to entering into loan agreements with local borrowers or getting securities or guaranties. No exchange control applies. Only must foreign indebtedness be registered with the Central Bank of the Argentine Republic for a debtor to make payment of principal and interest abroad (Communication “A” 3602).

Foreign lenders will be taxed by income tax on the loan´s interests. The general tax rate is 35%, although significant lower rates may apply in certain cases of international financing (Income Tax Law Number 20,628, Article Number 93, sub-article c). The local debtor is liable for withholding and payment of the tax.

Valued Added Tax is levied on the loan´s interests at a general rate of 21%; however, a 10,5% rate may apply in specific loan agreements (Valued Added Tax Law Number 20,631, Article Number 28, sub-article d).

Stamp tax applies to the granting of a loan, security interest or guaranty unless executed under an offer letter – acceptance scheme. This tax varies according to the provincial jurisdiction involved, its rate being commonly around 1%.

Creation of security interests may also involve registration charges and notary fees.

For additional information on these or any other issues related to doing business in Argentina, please, sign up for our Legal Blog or contact us at any time.

[1] To learn on how to acquire title to or lease real estate to do business in Argentina, please, read our article on our Legal Blog.

Mario Eduardo Castro Sammartino

Our publications exclusively express the author´s opinion and do not purport to be legal counsel on any case. Should you need it, you must consult with your trusted lawyer or may contact us at your convenience. If you liked the article, please, share it.

 

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