Actualidad Peru

Regulations governing Collateral Security

Legislative Decree 1400

Legislative Decree 1400 was published on 10 September, approving the regulations for collateral security and information system for collateral security, to promote more productive business development of MSMEs and of the sectors with a major impact on the national economy, improving the environment for financing, granting collateral and similar.

Act 28677 has been in force over collateral security since 2006. This decree revokes the former act, although current collateral securities already filed in public registers will remain in force and effective until they are canceled; any amendments made to these in the future will be subject to the provisions in the new system. The main changes include the following:

Collateral-security information system

  • Online platform specially designed for filing and reporting collateral securities, linked to a public, remote-access database, where the digital reports of collateral securities being set up, amended, canceled and executed are all kept on file.
  • The register rating has been suppressed, given that the new filing system is digital.
  • There will be a standard charge for each digital data entry, whatever the number or value of the goods being used as collateral or the amount of the levy.

Digital data entries

  • This refers to each of the digital forms input into the Collateral Security Information System (SIGM in its Spanish acronym), which are generated, filled out, sent and stored in digital format
  • The system handles the reporting of the constitution, changes, cancellation and foreclosure of the collateral.
  • It is separate from the actual constitution of the collateral security, so it does not ratify legal acts or contracts; nor does it check whether these indeed exist, are effective or valid, nor does it check the accuracy of the information published.
  • It contains the identification of the obligor or guarantor and the creditor in the case, a description of the collateral goods and the maximum sum of the debt guaranteed.
  • Any digital data entry containing information other than about the legal act constituting the collateral that is not corrected within 3 working days of having been reported, will constitute a breach of this regime and may be penalized by the National Public Records Authority, with sanctions ranging from a warning to a fine of up to 100 tax units (UIT).

Act constituting or amending a collateral security

  • Unlike the earlier law, which allowed acts to be unilateral, these will be bilateral, and may consist of any written medium that specifies the will of the parties under penalty of being voided; the act can be formalized by means of a public document, with certified, digital or handwritten signatures, as the parties decide.
  • This provision will take precedence over the regulations in article 176 of the General Financial System Act, indicating that contracts can have certified signatures if they contain an act of up to 40 tax units; and that, for higher sums, it must be a public document.

Senior collateral security for purchase transactions

  • This is a new legal figure by virtue of which a secured loan guarantees the financing of the purchase of one or several goods on the part of the collateralized debtor.
  • It can provide collateral for the purchase of movable goods in the present or the future and/or the costs of their acquisition.
  • It takes priority over any other concurrent collateral security set up by the obligor that does not have the aim of purchase, provided that the secured creditor who is financing the purchase is in possession of the equipment, or files an online entry of the priority collateral in the Secured Lending Information System before the obligor takes possession of the goods.

Pre-filed collateral security

  • This is published in the SIGM before the corresponding legal act takes place, and by publishing it, establishes the seniority of the collateral security.
  • This voids the figure of the pre-constituted collateral security.

The law will come into force on the next working day after the SIGM starts operating, to which end the following must be acted upon:

  • Publication of the system's regulations - 120 calendar days after 11 September 2018.
  • Onboarding of the supplier to develop the SIGM - 90 calendar days after the regulations are published.
  • SIGM goes live - 270 calendar days after the supplier is taken on. This deadline may be extended once.