Bankruptcy Law

Article L. 622-30(1) of the Commercial Code, which is applicable to the receivership procedure by virtue of Article L. 631-14, prohibits the registration, subsequent to the opening judgment, of mortgages, pledges and privileges constituted prior to the opening of the procedure, only where this formality has not been carried out by that date .
Consequently, a party, whose claim for damages arises o …

Prohibition of registrations and publications subsequent to the opening judgment

Article L. 622-30(1) of the Commercial Code, which is applicable to the receivership procedure by virtue of Article L. 631-14, prohibits the registration, subsequent to the opening judgment, of mortgages, pledges and privileges constituted prior to the opening of the procedure, only where this formality has not been carried out by that date .

Consequently, a party, whose claim for damages arises on the date on which the loss is realized, is not authorized to register a mortgage after the judgment opening the procedure simply because the final decision fixing the amount of the mortgage is made after the publication of that judgment . Similarly, a mortgage on a joint property may no longer be registered after the judgment opening the insolvency procedure of the spouse in good standing, since the rights of each spouse cannot be individualized for the duration of the community . On the other hand, a mortgage taken out by one of the spouses on an undivided property is valid up to the amount of his or her share in the property sold, even if the other spouse is prohibited from registering a mortgage as a result of the opening of an insolvency procedure .

Article L. 622-30 does not, however, prevent the regularisation after the opening judgment of a provisional registration made prior to that date. Consequently, the opening of the insolvency procedure against the debtor's guarantor does not prevent the validation of previous provisional registrations relating to immovable property belonging to the guarantor . Similarly, while it is not possible to reinstate an authorization to register a pledge after the opening judgment, the same does not apply in the case of a supplementary registration replacing a provisional registration made prior to that date . Nor does the opening of the receivership procedure render ineffective a provisional judicial mortgage duly registered on one of the debtor's properties before the opening judgment and does not prevent the creditor from proceeding, within the two-month period running from the date on which the decision admitting or fixing his claim has become res judicata, with the definitive registration, which gives rank to the mortgage on the date of the initial formality . However, a registration of a vendor's preferential right that purports to rectify a prior registration of a lender's preferential right cannot be set up against the procedure if it was registered after the opening judgment .

In addition, although leasing does not constitute a security interest formally referred to in Article L. 622-30, it falls within the scope of the prohibition on registration 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 after the opening judgment, it cannot be set up against the lessee's creditors unless the registry of the competent court has carried out the publication procedure regulated by Articles R. 313-4 to R. 313-11 of the Monetary and Financial Code .

Lastly, 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 date certain or these decisions have become enforceable before that date. However, an auction judgment issued prior to the opening judgment but published afterwards remains valid, even if it is not enforceable against the insolvency procedure .

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

Cass. com., 27 November 2019, LawLex202200002312JBJ (LJ).

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

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

Cass. com. 11 April 1995, LawLex202200002805JBJ (RJ), handed down in the context of receivership, where the rules of Article L. 622-30 must be combined with those governing the nullity 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) ; Cass. 3e civ., 10 November 2021, LawLex202200003144JBJ (LJ).

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

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

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

Bankruptcy Law

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

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

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