Bankruptcy Law

The bankruptcy judge may, in accordance with Article L. 622-26(1) of the Commercial Code, relieve creditors of their foreclosure when their non-declaration is not due to their own fault or is due to the omission of their claim by the debtor in the list of claims. Subsequent non-privileged creditors may, like previous creditors, apply to the bankruptcy judge to be relieved of their foreclosure . Th …

Third-party default or omission from the list of creditors

The bankruptcy judge may, in accordance with Article L. 622-26(1) of the Commercial Code, relieve creditors of their foreclosure when their non-declaration is not due to their own fault or is due to the omission of their claim by the debtor in the list of claims. Subsequent non-privileged creditors may, like previous creditors, apply to the bankruptcy judge to be relieved of their foreclosure . The trial courts have full discretion to assess whether or not the reason for the creditor's default is attributable to him and whether or not he can be relieved of his foreclosure . The Court of Cassation specifies that the possible concealment of the existence of the debt by the debtor, which may justify the exercise for the action to obtain discharge from foreclosure, has no effect on the starting point of the period of time of the action, which runs from the publication of the opening judgment .

A creditor may first be relieved of the foreclosure if he establishes that his default, before the expiry of the time-limit for declaration, is not due, even in part, to his own act . This is the case of a creditor whose claim has not been declared as a liability in the debtor's insolvency procedure by his legal representative, without the latter informing him of this . On the other hand, if the creditor initiates proceedings, both against his debtor and against the legal representatives designated in the opening judgment, he is deemed, as of that date, to have been aware of the opening of the insolvency procedure, so that he was, in good time, able to declare his claim and cannot therefore be relieved of the foreclosure incurred . Similarly, a person who relies on an imprecision concerning the identity of the debtor, included in the notice to declare his claim, when the clarification of the claim did not require significant investigations, does not establish that his default is not due to his fault and cannot be relieved of the foreclosure . A creditor with a published security interest who declares his claim as unsecured prior to the warning sent to him cannot be relieved of the foreclosure if he does not rectify his declaration within the legal time-limit, the omission of his lien from the initial declaration of claim being due to his own fault . Nevertheless, the foreclosure is not enforceable against him if he was not notified personally by registered letter with acknowledgement of receipt, but only by simple letter .

A creditor may also be relieved of the foreclosure if he proves that the failure to declare is due to an omission by the debtor when drawing up the list of his creditors, even if the amount of the claim is uncertain . This is the case where the creditor's claim was omitted from the list of creditors in bad faith, since a judgment ordering the debtor to pay this debt had been served on him personally a few days before the list was drawn up, so that he could not have been unaware of its existence  or that he was specifically mentioned in the declaration of cessation of payments and was the holder of a long-standing and substantial claim that was being enforced . The debtor is also in bad faith if she declares herself free of any debt to anyone  or if she indicates the existence of social security contributions in her application for the opening of a safeguard procedure without subsequently mentioning the name of the social security body concerned on the list of creditors . If the voluntary nature of the omission of a claim is demonstrated, the creditor seeking relief from the foreclosure is not required to establish the existence of a causal link between its omission from the list and the lateness of its claim declaration . Finally, the failure of the debtor company to submit the list of creditors has the same effects as the omission of a creditor from the list .

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Bankruptcy Law

170. Third-party default or omission from the list of creditors

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170. Third-party default or omission from the list of creditors

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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