Article 10(5) of the Special Pledges Act allows the secured creditor at any time to register the pledge against a person who has acquired the pledged property, unless the pledge has been extinguished under Article 7. Under Article 8(4), effective from 30.12.2016, where the secured creditor has not consented under paragraph 3, the transferee acquires rights in the property subject to the pledge and assumes the position of a pledgor. The rule also applies to each subsequent transferee unless that transferee establishes good faith.<\/p>\n
Registration must relate to the same pledged and transferred property as the original registration. If only an individual asset and not the pledgor’s entire undertaking has been transferred, a pledge cannot be registered against the transferee over that asset alone, namely the real property that formed part of the undertaking.<\/p>\n
Under the earlier wording of Article 21(3) of the Special Pledges Act (State Gazette No. 34\/2006), a pledge of a business undertaking could be asserted against third parties acquiring rights in individual assets of the undertaking if it was also entered in the relevant register. Where the pledge agreement identified individual assets, the pledge continued to encumber them after their separation from the undertaking. Under the wording introduced in State Gazette No. 105\/2016, effective from 30.12.2016, the pledge agreement can be asserted against third parties acquiring rights in individual assets if it is also entered in the special register kept for assets of that kind.<\/p>\n
It follows that if the entry concerning the real property had also been made in the Property Register by the time of sale, the secured creditor is in a position comparable to a mortgage creditor and can obtain satisfaction from the property regardless of who owns it. The creditor may exercise its rights against the buyer of the property that formed part of the seller’s pledged undertaking. It may register the commencement of enforcement against the buyer and ask the enforcement officer to deliver possession of the property under Article 522 of the Code of Civil Procedure, pursuant to Article 35(2), third sentence, of the Special Pledges Act. If insolvency proceedings against the pledgor were opened before the commencement of enforcement was registered, the secured creditor obtains satisfaction within the insolvency proceedings under Article 43(4) of the Act.<\/p>\n
This article does not provide a legal opinion or advice about any particular person or situation. For assistance in an individual case, consult a commercial lawyer.<\/em>
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