Bankruptcy Law

Under Article L. 622-22 of the Commercial Code, “pending proceedings are interrupted until the creditor suing the debtor has made a declaration of his claim”. The proceedings are then resumed, but may only aim at establishing and fixing the claim, but in no case at ordering the debtor to pay it. Article L. 622-22 specifies that the proceedings in progress are resumed as of right, the legal represe …

Limited purpose of the resumption of proceedings

Under Article L. 622-22 of the Commercial Code, “pending proceedings are interrupted until the creditor suing the debtor has made a declaration of his claim”. The proceedings are then resumed, but may only aim at establishing and fixing the claim, but in no case at ordering the debtor to pay it. Article L. 622-22 specifies that the proceedings in progress are resumed as of right, the legal representative and, where applicable, the receiver or the commissioner for the execution of the plan being duly summoned. In addition, the debtor who is a party to the proceedings is required to inform the pursuing creditor of the opening procedure within ten days of the latter.

Article R. 622-20 of the Commercial Code provides that the interrupted proceedings are resumed at the initiative of the claimant creditor, as soon as the latter has produced to the court seized of the proceedings a copy of the declaration of his claim or any other element justifying the mention of his claim on the list provided for by Article L. 624-1 and has summoned the bodies of the procedure. In fact, the mere intervention of the legal representative and receiver of the employer company in the proceedings is not sufficient to render the resumption of the proceedings lawful, in the absence of justification, by the creditor, of his declaration of claim . The court can only fix the amount of a party's claim, after the resumption of proceedings, “subject to justification of the claim declaration”. He must carry out this verification even before ruling , if necessary ex officio . The submissions accompanying the writ of resumption of an ongoing proceeding and aimed at fixing the claimant's claim, do not constitute a declaration of claim in the hands of the legal representative . On the other hand, the court seized of the resumption for the determination of the amount of the claim must decide ex officio on the existence and the amount of the claim, even if the creditor has not modified his submissions seeking an order to pay .

A creditor who has not taken the necessary steps to resume the proceedings within two years of the opening of the insolvency procedure may not avail himself of the interruption provided for in Article L. 622-22 of the Commercial Code , nor of the limitation period, which only benefits the debtor . He may obtain the determination of his claim even if he has not responded to the notice of the legal representative proposing its rejection to the bankruptcy judge within the thirty-day time-limit, since the sanction provided for in Article L. 622-27 of the Commercial Code does not apply when proceedings are pending on the day of the opening of the debtor's insolvency procedure . In addition, the decision by which the court declares inadmissible a creditor's request to fix the amount of his claim, because of the dissolution of the debtor company, does not constitute a decision to reject this claim, which entails its extinction, the creditor retaining his right to sue his partners liable for the company's debts in proportion to their share in the capital .

In the absence of a declaration of claim, the conditions for the resumption of proceedings are not met, so that even if the claim of the foreclosed creditor is not extinguished, the proceedings remain interrupted until the closure of the insolvency procedure .  A judgment rendered in favor of a creditor after resumption of proceedings, when the latter has not declared his claim within the time-limit and this irregularity has not been covered by the debtor or the bodies of the procedure, must be deemed null and void . Moreover, only the legal representative is entitled to invoke the inopposability to the insolvency procedure of the claim fixed after the resumption of proceedings without having been summoned .

Finally, Article R. 622-20 adds that “[t]he final decisions rendered after the resumption of proceedings are, at the request of the legal representative, entered on the statement of claims by the court registrar that opened the procedure”.

Cass. com., 27 September 2016, (LawLex not found in English).

Cass. com., 28 April 1998, (LawLex not found in English).

Cass. com., 11 October 2011, (LawLex not found in English).

Cass. com., 27 February 2007, (LawLex not found in English).

Cass. com., 25 June 2002, (LawLex not found in English).

Cass. com., 4 May 2017, (LawLex not found in English).

Cass. com., 4 April 2006, (LawLex not found in English).

Cass. com., 11 April 2018, (LawLex not found in English).

Cass. 2e civ., 28 June 2006, (LawLex not found in English).

Cass. com., 5 September 2018, (LawLex not found in English) ; 13 February 2019, (LawLex not found in English).

Cass. com., 10 March 2021, (LawLex not found in English).

Cass. avis, 8 June 2009, (LawLex not found in English) ; Cass. com., 5 May 2015, (LawLex not found in English).

Bankruptcy Law

143. Limited purpose of the resumption of proceedings

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Les notions juridiques connexes

143. Limited purpose of the resumption of proceedings

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Les notions juridiques connexes

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