Bankruptcy Law

In accordance with Article L. 622-26(1) of the Commercial Code , the bankruptcy judge may relieve creditors of their foreclosure if their default is not due to their own fault, or is due to the debtor's omission of their claim from the list of claims. Like prior creditors, subsequent non-privileged creditors may apply to the bankruptcy judge for relief from foreclosure . Trial courts have full dis …

Third-party default or omission from list of creditors

In accordance with Article L. 622-26(1) of the Commercial Code , the bankruptcy judge may relieve creditors of their foreclosure if their default is not due to their own fault, or is due to the debtor's omission of their claim from the list of claims. Like prior creditors, subsequent non-privileged creditors may apply to the bankruptcy judge for relief from foreclosure . Trial courts have full discretion to assess whether or not the reason for default cited by the creditor is attributable to him or her, and whether or not it entitles him or her to relief from foreclosure .

A creditor may first be relieved of foreclosure if he can establish that his default, before expiry of the declaration period, is not due, even in part, to his own fault . This is the case of a creditor whose claim has not been declared by his legal representative as part of the debtor's receivership, without the legal representative having informed him of this . On the other hand, if the creditor takes legal action against both the debtor and the legal representatives designated in the opening judgment, he is deemed to have been aware of the opening of the receivership from that date, so that he was in a position to declare his claim in good time, and cannot therefore be relieved of the incurred foreclosure . Similarly, a creditor who relies on an imprecise statement of the debtor's identity on the notice to declare his claim, when clarification of the claim did not require any major investigation, fails to establish that his default is not due to his own fault, and cannot be relieved of the foreclosure . 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 time-limit, since the omission of his privilege in the initial declaration of claim is due to his own fault . However, the foreclosure is not enforceable against him if he was not personally notified by registered letter with acknowledgement of receipt, but only by simple letter .

A creditor can then be relieved of the foreclosure if he proves that the failure to declare is due to a total failure by the debtor company to provide a list of creditors  or to an omission of his name when drawing up the list of creditors, even if the amount of the claim is uncertain . This is the case when the debtor's claim has been omitted, in bad faith, from the list of creditors, since a judgment ordering the debtor to pay this debt had been served on him personally a few days before the list was drawn up, so that he could not have been unaware of its existence  or that he was mentioned by name in the declaration of the state of cessation of payments and was the holder of a long-standing and substantial claim which was being enforced . A debtor who declares herself to be free of any debt to anyone  or who indicates the existence of social security contributions in her application to open an insolvency procedure without subsequently mentioning the name of the social security body concerned on the list of creditors  is also acting in bad faith. If the voluntary nature of the omission of a claim is demonstrated, the creditor seeking relief from foreclosure is not required to establish the existence of a causal link between his omission from the list and the lateness of his claim declaration . However, the Court of Cassation specifies that any concealment of the existence of the debt by the debtor, which may justify the filing of an action for relief from foreclosure, has no bearing on the starting point of the time-limit to bring the action, which runs from publication of the opening judgment .

Applicable to the receivership procedure under art. L. 631-14 C. com.

Cass. com., 9 December 2020, LawLex202100006146JBJ (RJ).

Cass. com., 2 February 2022, LawLex202200002086JBJ (LJ).

Cass. com., 12 July 2011, LawLex202100002312JBJ (LJ).

Cass. com., 16 March 2010, LawLex202200002481JBJ (RJ) ; 9 April 2013, LawLex202200002482JBJ (LJ).

Cass. com., 12 January 2010, LawLex202100002307JBJ (LJ).

Cass. com., 10 January 2012, LawLex202100002313JBJ (S).

Cass. com., 16 November 2010, LawLex202100001178JBJ (LJ).

Cass. com., 27 March 1990, LawLex202100002305JBJ (RJ).

Cass. com., 13 February 2007, LawLex202200002483JBJ (RJ).

Cass. com., 16 October 2001, LawLex202200002409JBJ (RJ).

Cass. com., 11 October 1998, LawLex202100001181JBJ (RJ).

Cass. com., 31 May 2016, LawLex202100002304JBJ (RJ).

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

Cass. com., 17 July 2001, LawLex202100002302JBJ (RJ) ; 3 June 2009, LawLex202100002898JBJ (LJ).

Cass. com., 16 June 2021, LawLex202100003831JBJ (LJ).

Bankruptcy Law

434. Third-party default or omission from list of creditors

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434. Third-party default or omission from list of creditors

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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