The Labor Court of Appeals confirmed that assets within the scope of a trust fund are exempted from the claims made to the trustee by its creditors

On September 8, 2008 Tribunal IV of the Labor Court of Appeals, in re: “Vega Eduarda Alicia v Obra Social para el Personal del Ministerio de Economía", discarded the appeals filed by the plaintiff and its former attorney by means of which the first instance ruling was challenged –within the framework of the obligation to comply with the ruling– which had rejected the pleas for attachment upon the assets that the employer had timely transferred to a trustee, registering the corresponding trust fund..

In order to reject each request, Tribunal IV of the Labor Court of Appeals expressed that:

(i)    In accordance to the District’s Attorney opinion, the trust transmission cannot be considered as opposable to the trustee’s creditors unless there is a sale causing a fraud to third parties.

(ii)   Such matter in question (fraud) can only be analyzed by means of an annulment action (acción pauliana) and under the terms of Section 962 and related sections of the Civil Code, and does not interfere whatsoever with the limited process of compliance with court’s judgment.

(iii)   In accordance with a legal precedent judged by Tribunal I of that very same Court of Appeals in re: "Bertoldo, Heraclio vs Unión Obrera Metalúrgica de la República Argentina re: dismissal", S.I. 58.565 on 12-28-2007, the assets that are part of a trust fund are exempted from the creditor’s actions against the trustee and the trustor as well, unless there is a fraud; for that matter, it can be concluded that the trust fund can only be challenged throughout the corresponding actions by means of an independent lawsuit.

(iv)   The request against the transference of assets to the trust fund should be made by means of an annulment action, which should follow a completely separate lawsuit, with the guarantee of defense, such lawsuit is outside the labor jurisdiction (vote from Dr. Zas).

(v)   Labor jurisdiction does not apply since there is a conflict outside the scope of Section 20 of the Labor Law of Organization and Procedural of the National Labor Justice No 18,345, and its modifications, since it does not require the analysis of legal or regulatory provisions of labor law for its solution.

(vi)  The judgment of the Court of Appeals did not imply any kind of opinion as regards the requirements that are needed in order to support the action of fraud set forth in Section 15 of the Trust Fund Law No 24,441, and its modifications.

To conclude, in accordance with the judgment of Tribunal IV of the Labor Court, in the mentioned case, nor the plaintiff or its former attorney had any success while chasing the assets assigned to the trust fund, confirming the legal precedent ruled by the other Tribunal of the same Court of Appeals for the same matter.

Let us remember that the Trust Fund Law No 24,441 sets forth, in its section 15, that the assets affected by a trust fund are exempted from the actions filed by the creditors of the trustee and the trustor, with exception to the fraud action.

Therefore, the judgment under analysis shows the validity and protection of the assets created by jeans of a trust fund and its independence and immunity as regards to the credit relations of the trustee and the trustor with third parties.