Bankruptcy Law

Article L. 622-30(1) of the Commercial Code prohibits the registration, subsequent to the opening judgment, of mortgages, pledges, collateral securities and privileges, constituted prior to the opening of the procedure, only when this formality has not been carried out on that date . A mortgage constituted on a jointly owned building may no longer be registered after the opening judgment of the pr …

Prohibition of registrations and publications subsequent to the opening judgment

Article L. 622-30(1) of the Commercial Code prohibits the registration, subsequent to the opening judgment, of mortgages, pledges, collateral securities and privileges, constituted prior to the opening of the procedure, only when this formality has not been carried out on that date . A mortgage constituted on a jointly owned building may no longer be registered after the opening judgment of the proceedings for the spouse in bonis, since the rights of each spouse cannot be individualized during the period of the community . On the other hand, a mortgage constituted by one of the spouses on a joint owned building is valid up to the amount of his or her share in the building sold, even if the other spouse remains subject to the prohibition on registration of a mortgage because of the opening of an insolvency procedure .

Article L. 622-30 does not, however, prevent the regularization after the opening judgment of a provisional registration made before that date. Consequently, the opening of the insolvency procedure of the debtor's guarantor does not prevent the validation of previous provisional registrations which relate to buildings belonging to him . Similarly, the reinstatement of an authorization to take out a pledge registration is not possible after the opening judgment, unless it is a supplementary registration replacing a provisional registration made prior to that date . The opening of the insolvency procedure does not deprive of effect a provisional judicial mortgage regularly registered on a building of the debtor before the opening judgment and does not prevent the creditor from proceeding, within the two-month period running from the day on which the decision admitting or fixing his claim has become final, to the definitive registration, which gives rank to the mortgage on the date of the initial formality . However, a registration of a vendor's lien, allegedly rectifying a prior registration of a lender's lien, cannot be set up against the procedure if it was registered after the opening judgment .

Moreover, although the financial lease does not constitute a security formally referred to in Article L. 622-30, it is subject to the prohibition of registrations when it relates to movable property subject to publication. In fact, according to the Court of Cassation, once the lessor is no longer able to publish his right of ownership as of the opening judgment, it cannot be set up against the lessee's creditors as he has not carried out the publication procedure regulated by Articles R. 313-4 to R. 313-11 of the Monetary and Financial Code at the registry of the competent court .

Finally, Article L. 622-30(1) adds that deeds and judicial decisions transferring or constituting rights in rem may not be registered as from the opening judgment, unless these deeds have acquired a certain date or these decisions have become enforceable before this date. Nevertheless, an auction judgment prior to the opening judgment but published after it remains valid, even if it is not enforceable against the insolvency procedure . 

Cass. com., 6 December 1994, LawLex202200002804JBJ (RJ).

Cass. com., 20 May 1997, LawLex202100002765JBJ (RJ).

Cass. com., 20 June 1995, LawLex202100002766JBJ (LJ).

Cass. com., 11 April 1995, LawLex202200002805JBJ, rendered in matters of judicial reorganization, where the rules of Article L. 622-30 must be combined with those governing the nullities of the suspect period.

Cass. com., 9 May 1995, LawLex202200002807JBJ (RJ); CA Toulouse, 10 February 1994, LawLex202200002816JBJ (RJ).

Cass. com., 3 May 2016, LawLex202100002763JBJ (LJ) ; 17 November 1992, LawLex202100002762JBJ (RJ).

CA Paris, 2 April 1998, LawLex202200002813JBJ (LJ).

Cass. com., 4 December 2001, LawLex202200002811JBJ (LJ).

Cass. com., 22 January 2002, LawLex202100002767JBJ (LJ).

Bankruptcy Law

194. Prohibition of registrations and publications subsequent to the opening judgment

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194. Prohibition of registrations and publications subsequent to the opening judgment

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