Bankruptcy Law

Insofar as the law does not specify the possible remedies available against a judgement ruling on a request to postpone the date of cessation of payments, ordinary law is once again in full force . Unless otherwise provided , appeals may be lodged against first-instance judgments, so that a judgment postponing the date of cessation of payments, which is not final, may be appealed .
The date of ces …

Remedies

Insofar as the law does not specify the possible remedies available against a judgement ruling on a request to postpone the date of cessation of payments, ordinary law is once again in full force . Unless otherwise provided , appeals may be lodged against first-instance judgments, so that a judgment postponing the date of cessation of payments, which is not final, may be appealed .

The date of cessation of payments set in the judgment opening the insolvency procedure of a legal entity, or in the postponement judgment, is enforceable against its manager, who, having a personal interest in criticizing this date, is entitled to lodge an appeal or a third party-opposition against this decision, depending on whether or not he has been called to the proceedings . The appeal lodged by the former manager of a debtor company against a decision to postpone the date of cessation of payments is therefore admissible when the legal representative has summoned him in the latter capacity . Although the debtor may not act to submit an application to postpone the date of cessation of payments to a date other than that resulting from the judgment opening the insolvency procedure or from a subsequent judgment , he is entitled to lodge an appeal in cassation against a judgment which has ruled on an application for postponement submitted by a third party . On the other hand, the legal representative appointed in the new insolvency procedure opened after the rescision of the plan is not entitled to lodge an appeal against a ruling on an application to postpone the date of cessation of payments made under the previous procedure, whose operations have been terminated and which are now closed .

The communication to the debtor and the legal representatives of the decision by which the court postpones the date of cessation of payments , starts the time-limit for them to exercise the remedies available to them. The delay for the legal representative to appeal against the judgment ruling on his request to postpone the date of cessation of payments does not run from service of the decision, which is not necessary in his case, but only from the communication of the decision to him .

In accordance with Article R. 661-2 of the Commercial Code, unless otherwise stipulated, objections and third-party objections may be lodged against judicial receivership decisions by filing a declaration with the court registry within ten days of the decision being handed down, rather than by registered letter . However, for decisions subject to the formalities of insertion in a legal announcements medium and in the BODACC (Official Bulletin of Civil and Commercial Announcements), the time-limit runs only from the day of publication in the BODACC, and not from the date of pronouncement of the decision . In particular, a creditor whose rights and obligations are not directly affected does not have to be notified of the decision to postpone the date of cessation of payments. The ten-day period within which a creditor may lodge an objection therefore runs from the date of publication in the BODACC . A fortiori, when the postponement is likely to have an impact on the creditor's rights through the possible calling into question of a seizure-attribution carried out during the suspect period, the creditor has an interest in lodging a third-party objection against this decision as soon as it is published in the BODACC , without waiting to be sued for nullity of the deed concluded during this period . However, the Court of Cassation specifies that a decision confirming a judgment postponing the debtor's cessation of payments does not itself have to be published in the BODACC, so that the time-limit for lodging a third-party objection runs from the date of its pronouncement .

When lodging a third-party objection against the postponement decision, the creditor must notify not only the legal representative who initiated the application, but also the debtor . However, a creditor's recourse against a postponement judgment may also be exercised by way of a voluntary intervention in the proceedings brought by the debtor, even if the latter has subsequently withdrawn his action .

Cass. com., 27 September 2011, LawLex202100004332JBJ (RJ).

Cass. com., 15 May 1990, LawLex202100004322JBJ (RJ) ; 14 May 2002, LawLex202100004323JBJ (LJ) ; 14 June 2017, cited above.

Cass. com. 15 October 2013, LawLex202100004321JBJ (LJ). See also Cass. com. 13 February 2007, LawLex202100003716JBJ (LJ), emphasizing that a date of cessation of payments set by the judgment opening the debtor's receivership, maintained by the liquidation judgment, both duly published in the BODACC, can no longer be contested by a creditor who has not lodged a third-party objection against them.

CA Basse-Terre, 28 March 2022, LawLex202200006451JBJ (LJ). Comp, Cass. com, 17 October 2018, LawLex202100004336JBJ (LJ), holding that a creditor is not entitled to pursue the nullity, by way of third-party opposition, of a deed initiating proceedings to postpone the date of cessation of payments which is not opposed to him.

Cass. com. 14 June 2017, LawLex202100001873JBJ (LJ). See also Cass. com. 17 June 2020, LawLex202100004316JBJ (LJ), emphasizing that a manager or former manager informed by the publication in the BODACC of the judgment postponing the date of cessation of payments, which is likely to have an impact on his rights, must, within ten days of this publication, file a third-party objection to the decision, without being able to wait to be sued for liability for insufficient assets.

Cass. com., 8 March 2017, LawLex202100001879JBJ (LJ).

Cass. com., 24 January 2006, LawLex202100004333JBJ (RJ).

Cass. com., 27 September 2017, LawLex202100004335JBJ (LJ).

Cass. com., 5 September 2018, LawLex202100001881JBJ (LJ).

Cass. com., 1st March 2005, LawLex202100001875JBJ (LJ).

Cass. com., 7 December 1999, LawLex202100004303JBJ (LJ).

Cass. com., 1st February 2000, LawLex202100004302JBJ (RJ).

Cass. com., 15 May 2019, LawLex202100004320JBJ (LJ).

Cass. com., 5 October 2010, LawLex202100004317JBJ (LJ).

Bankruptcy Law

332. Remedies

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332. Remedies

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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