Bankruptcy Law

The owner of a property who does not exercise the action for recovery within three months from the publication of the opening judgment of the safeguard procedure is foreclosed . The same sanction applies, pursuant to Article R. 624-13 of the Commercial Code, to the claimant who, in the absence of acceptance by the receiver within one month of receipt of the application, does not refer the matter t …

Claimant's foreclosure

The owner of a property who does not exercise the action for recovery within three months from the publication of the opening judgment of the safeguard procedure is foreclosed . The same sanction applies, pursuant to Article R. 624-13 of the Commercial Code, to the claimant who, in the absence of acceptance by the receiver within one month of receipt of the application, does not refer the matter to the bankruptcy judge within one month of the expiry of the time-limit for response.

The foreclosure of an action for the recovery of property held by the debtor does not extinguish his right of ownership , nor does it entail its transfer to the debtor's patrimony . However, it does render the right of ownership of the property unenforceable against the insolvency procedure and makes it part of the common pledge of the creditors . In fact, the lessor who has not acted within the three-month period loses his right to claim the property, which becomes part of the creditors' pledge . In addition, the Court of Cassation specifies that the declaration of a claim corresponding to unpaid goods as a preferential right by a seller of reserved furniture does not exempt him, if he wishes to oppose his right of ownership to the procedure, from claiming the goods .

Nevertheless, the absence of a claim does not prevent a third party who claims to be the owner of property seized from applying for its segregation in order to oppose the seizing creditor's right . Nor does the inopposability resulting from foreclosure prevent the owner from obtaining restitution of his property against the third party purchaser in bad faith . Moreover, the owner of equipment supplied to the debtor may, even if he has not made a claim within the time-limits, obtain restitution of the equipment after the judgment which adopts the continuation plan and puts an end to the insolvency procedure, by the effect of the irrevocable termination of the lease which took place before the opening judgment .

The Court of Cassation was seized of the conformity with Article 17 of the Declaration of the Human Rights and Citizen Rights of 26 August 1789 and with Article 1 of the first additional protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, of the sanction of the inopposability of the right of ownership to the insolvency procedure. The Court of Cassation considered that Article L. 624-9 of the Commercial Code does not affect the claimant's right of ownership . According to the court, the sanction of the non-invocability of the right of ownership to the collective procedure does not constitute a disproportionate interference with the right of ownership, but only a restriction on the conditions of its exercise, provided for by law and justified by a reason of general interest, since the purpose of the framework of the claim is to determine quickly and with certainty the assets likely to be seized by the insolvency procedure so that a decision can be taken, within a reasonable delay, on the outcome of the latter in the interest of all .

Cass. com., 5 November 2013, LawLex202100003428JBJ (LJ) ; 4 January 2000, LawLex202100003410JBJ (LJ).

Cass. com. 4 January 2000, cited above, considering that in the relationship between the debtor and the lessor of the thing, the absence of a claim does not entail either the extinction of the lessor's right of ownership or its transfer to the debtor.

Cass. com., 3 April 2019, LawLex202100001714JBJ (LJ) ; 3 December 2003, LawLex202100003411JBJ (LJ).

Cass. com., 23 May 1995, LawLex202100003413JBJ (LJ).

Cass. com., 15 October 2013, LawLex202100002281JBJ (LJ).

Cass. com., 26 November 2002, LawLex202100003419JBJ (LJ).

Cass. com., 15 December 2015, LawLex202100003415JBJ (LJ).

Cass. com., 24 March 2004, LawLex202100003420JBJ (RJ).

Cass. com., 14 March 1995, LawLex202100003414JBJ (RJ).

Bankruptcy Law

218. Claimant's foreclosure

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

218. Claimant's foreclosure

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise