The trustee Stella Borja who has been working on the competitions of the Alejandro Berrutti and his wife María José Argenti delivered to the court processing the bankruptcy proceedings the credit verification of Oro Rojo SA, another of the companies with which Portfolio Capital operated and concluded that while the liabilities reach US$13,798,861, equivalent to $554 million, the assets to meet the debt are US$5 million.
In his writing, Borja stated that “based on the principle of equal treatment of creditors and the investigative work carried out (…) both those who appear in the shareholder record books and those who do not, have the status of unsecured creditors for the amounts contributed and on that basis the analysis of the documentation presented will be carried out.”
The trustee justified her decision by quoting Commercial jurist Camilo Martínez Blanco who points out that “the principle of equal treatment arises from noticing the difficult situation posed between the different interests in conflict due to the impossibility of satisfying everyone at the same time. It is then when the delicate task of distributing equitably in a context of scarcity is appreciated.”
Regarding Oro Rojo, Borja stated that the first investors “entered into a contract called a shareholders’ agreement” that communicated their participation to the BCU (in June 2018) and attended a meeting. However, later in time, with the same contract, “no communication was made to the BCU and they never attended a shareholder meeting.”
Then the investor contributes certain money, “an attractive fixed interest is agreed upon, which is paid semiannually, regardless of the success or failure of the venture.”
“It is a contract that gives the appearance of being a shareholders’ contract, but in reality it is a simple loan contract in which one party delivers capital, collects interest and after a period of time would recover its capital,” said Borja, which leads her to conclude that “it is evidently clear proof of simulation and that the true -underlying- contract is a mutual one in which one party delivers a sum of money, after time collects interest and at the end of the term recovers its capital.”
He considered that “the apparent – but not intended – contract is that of partnership which would imply collaboration in profits and losses and affectio societatis, which is non-existent in the case.”
For this reason, Borja concluded that “the greatest staging and the greatest maneuver carried out by the debtor cannot be rewarded by depriving a group of the status of creditor by pretending that it is a shareholder. Otherwise, the paradox would arise that the more successful the maneuver carried out by the debtor was, the more it is rewarded by excluding creditors from the passive mass.”
