Bankruptcy Law

Applicable to the receivership procedure by reference to Article L. 631-14 of the Commercial Code, Article L. 622-24(1) provides that creditors holding a published security or bound to the debtor by a published contract must be personally notified of the need to declare their claim.
This obligation, which is incumbent on the legal representative, concerns all creditors benefiting from a published  …

Security holders or creditors bound by published contracts

Applicable to the receivership procedure by reference to Article L. 631-14 of the Commercial Code, Article L. 622-24(1) provides that creditors holding a published security or bound to the debtor by a published contract must be personally notified of the need to declare their claim.

This obligation, which is incumbent on the legal representative, concerns all creditors benefiting from a published security, on the day of the judgment opening the insolvency procedure, without any distinction having to be made between securities , or according to the purpose of this publication or the nature of the claim . The obligation to notify does not extend to the assignee of the claim, such as a guarantor claiming to be subrogated to the creditor's rights . The debtor's affiliation, by way of declaration, to the section of the National Old Age Insurance Fund for the Liberal Professions (Caisse nationale d'assurance vieillesse des professions libérales) to which he/she belongs, does not have the effect of binding the parties by a published contract, which would justify the latter being personally warned of having to declare his/her claim . Similarly, notification of the pledge of the debtor's shares does not constitute a publication requiring the creditor with a security interest to be notified .

The status of a creditor holding a published security interest is assessed on the date of the judgment opening the receivership, even if the validity of the publication in question is subsequently contested . Conversely, this status is excluded when, on the date of the opening judgment, a mortgage has been cancelled, even by mistake . Similarly, the legal representative, who must be able to rely on the entries in the land register, is not required to issue a warning to the company that has absorbed the creditor holding a registration when the latter has not updated the registration .

Creditors holding a published security or bound to the debtor by a published contract must be notified personally or, where applicable, at their elected domicile, by registered letter with acknowledgement of receipt , not by ordinary letter . The foreclosure cannot be set up against a creditor who has not been notified in the prescribed form . A fortiori, the foreclosure cannot be set up against creditors holding a published security, or a published leasing contract, if they were not notified personally , irrespective of their status as credit professionals “experienced in consulting the BODACC (Official Bulletin of Civil and Commercial Announcements)” , and, in general, even if it is established that they were aware, by other means, of the opening of the insolvency procedure . Nor can foreclosure be invoked against a creditor holding a published security if the notice to declare was not sent to his current address . However, if the creditor holding a published security interest is under guardianship, the warning must be sent to his guardian, so that the warning, sent exclusively to the creditor, cannot set in motion the deadline for declaring the claim . The inopposability of foreclosure in the event of failure to give notice does not apply to a creditor who is the beneficiary of a mortgage granted not by the debtor, but by an individual manager .

Article L. 622-24 specifies that “[t]he delay for declaring a claim runs from the date of notification of this warning”. The two-month period within which a creditor with a published security must declare his claim begins to run when he receives the first warning letter, sent to his headquarters, informing him of this necessity, even if a second letter to the same effect has subsequently been sent to him, since this second letter is unsuitable for starting a new period . When the legal representative sends two warnings to the creditor holding a published security, the time-limit for declaring the claim does not start to run until receipt of the one addressed to him by name . A creditor who has received notice from the trustee to declare his claim at the address given by the trustee on the claim declaration sent subsequently is barred if he fails to declare within the two-month delay, even if it has not been shown that the notice was sent to his headquarters . A creditor holding a published security interest who declares his claim as unsecured before the warning has been sent to him, cannot be relieved of the foreclosure if he does not rectify his declaration within the legal delay, since the omission of the lien in the initial claim declaration is his fault . However, a creditor holding a published security interest who has declared his claim within two months of publication of the opening judgment in the BODACC is not subject to foreclosure, even if he was personally warned by the legal representative of the need to declare his claim prior to this publication . Indeed, the special delay granted to secured creditors by Article L. 622-24 cannot be detrimental to them.

The Court of Cassation has ruled that an irregular warning sent to a mortgagee, notably because it does not sufficiently inform him of all his rights and obligations , does not mention the name of the debtor, or does not reproduce the legal and regulatory provisions to be observed by the declarant , cannot set in motion the delay for declaring the claim. However, the warning is valid even if it does not refer to the applicable texts ratione tempore, as long as it is sufficient to inform the addressee of his rights and obligations . Personal warnings are sent to creditors holding published securities on a form bearing, in all the official languages of the institutions of the European Union, the title “Invitation to lodge a claim. Deadlines to be respected”, which mentions an erroneous declaration deadline and does not reproduce the applicable texts, does not start the two-month period for declaring the claim, on expiry of which the creditor is subject to foreclosure .

Cass. com., 9 January 2001, LawLex202100002842JBJ (LJ).

Cass. com., 16 September 2014, LawLex202100002847JBJ (LJ).

Cass. com., 24 June 2003, LawLex202100002890JBJ (RJ) ; 2 May 2001, LawLex202100002894JBJ (RJ).

See for an application, Cass. com., 4 July 2000, LawLex202100002879JBJ (LJ).

Cass. com., 16 October 2001, LawLex202100002897JBJ (RJ).

Cass. com., 3 June 2009, LawLex202100002898JBJ (LJ).

Cass. com., 27 February 2007, LawLex202100002900JBJ (LJ).

Cass. com., 6 December 2011, LawLex202100002905JBJ (LJ).

Cass. com., 21 June 2005, LawLex202100002884JBJ (LJ).

Cass. com., 16 September 2008, LawLex202100002899JBJ (RJ).

Cass. com., 4 June 2013, LawLex202100002904JBJ (LJ).

Cass. com., 1 February 2005, LawLex202100002903JBJ (LJ).

Cass. com., 5 December 2006, LawLex202100002844JBJ (RJ).

Cass. com., 13 May 2003, LawLex202100002864JBJ (RJ).

Cass. com., 18 June 2013, LawLex202100002893JBJ (S) ; 30 October 2012, LawLex202100002877JBJ (LJ).

Cass. com., 22 March 2016, LawLex202100002848JBJ (RJ).

Cass. com., 15 May 2001, LawLex202100002859JBJ (RJ).

Cass. com., 17 February 2015, LawLex202100002861JBJ (RJ).

Cass. com., 7 July 2009, LawLex202100002901JBJ (LJ).

Cass. com., 31 January 2012, LawLex202100002883JBJ (RJ).

Cass. com., 16 May 2006, LawLex202100002880JBJ (LJ).

Cass. com., 18 September 2012, LawLex202100002887JBJ (RJ) ; 15 April 2008, LawLex202100002845JBJ (LJ).

Cass. com., 12 July 2004, LawLex202100002886JBJ (LJ).

Cass. com., 17 April 2019, LawLex202100002841JBJ (LJ).

C. com. R. 622-21, para. 3, applicable by reference to art. R. 631-27.

Cass. com., 14 March 2000, LawLex202100002888JBJ (RJ)

Bankruptcy Law

420. Security holders or creditors bound by published contracts

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420. Security holders or creditors bound by published contracts

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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