Bankruptcy Law

Under Article L. 622-22 of the Commercial Code, applicable to the receivership procedure on the basis of Article L. 631-14, “proceedings in progress are interrupted until the pursuing creditor has declared his claim”. Proceedings are then resumed, but may only aim to establish and fix the claim, and under no circumstances to order the debtor to pay it. These provisions do not apply to claims of wh …

Limited purpose of the resumption of proceedings

Under Article L. 622-22 of the Commercial Code, applicable to the receivership procedure on the basis of Article L. 631-14, “proceedings in progress are interrupted until the pursuing creditor has declared his claim”. Proceedings are then resumed, but may only aim to establish and fix the claim, and under no circumstances to order the debtor to pay it. These provisions do not apply to claims of which the debtor in receivership is a beneficiary . Article L. 622-22 specifies that proceedings in progress are automatically resumed, with the legal representative and, where applicable, the receiver or the commissioner for the execution of the plan duly summoned. In the case of a receiver, the latter must be called into question, whatever his mission . In addition, the debtor party to the proceedings is required to inform the pursuing creditor of the opening of the procedure within ten days.

Article R. 622-20 of the Commercial Code, applicable to the receivership procedure by reference to Article R. 631-20, stipulates that interrupted proceedings may be resumed on the initiative of the claimant creditor, as soon as the latter has provided the court hearing the proceedings with a copy of his claim declaration, or any other element justifying the inclusion of his claim on the list provided for in Article L. 624-1, and has called into question the bodies involved in the procedure. The mere intervention of the employer's representative and receiver in the proceedings is not sufficient to render their resumption lawful, in the absence of justification of the creditor's claim declaration . The court can only set the amount of a party's claim, after resumption of proceedings, “subject to justification of the claim declaration”. He must carry out this verification before ruling , if necessary ex officio . The submissions accompanying the writ of resumption of proceedings and seeking to fix 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 purpose of fixing the amount of the claim must rule ex officio on the existence and amount of the claim, even if the creditor has not modified his submissions seeking an order for payment from the debtor .

A creditor who has not taken the necessary steps to resume proceedings within two years of the opening of the receivership 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 . This is because the sanction provided for in Article L. 622-27 of the Commercial Code, applicable to the receivership procedure by virtue of Article L. 631-14, is not intended to apply where proceedings on the merits were in progress on the day the debtor's insolvency procedure were opened . Furthermore, a decision by the court to declare inadmissible a creditor's request to fix the amount of his claim, due to the dissolution of the debtor company, does not constitute a decision to reject this claim, which would result in its extinction, as the creditor retains his right to take legal action against the partners liable for the company's debts in proportion to their share in the capital . A local court hearing an action for payment of a sum of money does not encroach on the powers of the bankruptcy judge when, after verifying whether the proceedings have been validly resumed, it merely sets the amount of the claim .

In the absence of a claim declaration, 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 in favor of a creditor after the resumption of proceedings, when the creditor has not declared his claim within the time-limit set and this irregularity has not been covered by the debtor or the organs of the procedure, must be deemed null and void . In addition, only the legal representative is entitled to invoke the inopposability to the receivership procedure of the claim fixed after the resumption of proceedings without having been called into question .

Lastly, Article R. 622-20 adds that “[t]he res judicata 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. 3e civ., 7 September 2017, LawLex202200001300JBJ (RJ).

Cass. com., 10 March 2021, LawLex202100006122JBJ (LJ).

Cass. com., 3 November 2009, LawLex202100005227JBJ (RJ).

Cass. avis, 8 June 2009, LawLex202100005225JBJ (LJ) ; Cass. com., 5 May 2015, LawLex202100002643JBJ (LJ).

Cass. com., 11 October 2011, LawLex202100002568JBJ (RJ).

Cass. com., 27 February 2007, LawLex202100002645JBJ (RJ).

Cass. com., 27 September 2016, LawLex202100002644JBJ (S).

Cass. com., 28 April 1998, LawLex202100005226JBJ (RJ).

Cass. com., 25 June 2002, LawLex202100002727JBJ (RJ).

Cass. com., 4 May 2017, LawLex202100002640JBJ (RJ).

Cass. com., 4 April 2006, LawLex202100002649JBJ (LJ).

Cass. com., 11 April 2018, LawLex202100002641JBJ (RJ).

Cass. 2e civ., 28 June 2006, LawLex202100002642JBJ (RJ).

Cass. com., 5 September 2018, LawLex202100001210JBJ (LJ) ; 13 February 2019, LawLex202100002646JBJ (RJ).

Bankruptcy Law

408. Limited purpose of the resumption of proceedings

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408. Limited purpose of the resumption of proceedings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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