Bankruptcy Law

In accordance with Article L. 643-2(1) of the Commercial Code, creditors holding a special privileged claim, pledge, hypothec or mortgage, and the Trésor public for its privileged claims, may, once they have declared their claims and even if they have not yet been admitted, exercise their individual right of pursuit if the liquidator has not undertaken the liquidation of the encumbered assets with …

Assumption of the right of individual pursuit by secured creditors

In accordance with Article L. 643-2(1) of the Commercial Code, creditors holding a special privileged claim, pledge, hypothec or mortgage, and the Trésor public for its privileged claims, may, once they have declared their claims and even if they have not yet been admitted, exercise their individual right of pursuit if the liquidator has not undertaken the liquidation of the encumbered assets within three months of the court ruling opening or pronouncing the court-supervised liquidation.

In order to be able to oppose a seizure of property by a creditor, the liquidator must be able to justify at least the commencement of enforcement of the sale of the encumbered assets within three months of the court-supervised liquidation ruling. This commencement of enforcement cannot be established solely by the ordinance of the bankruptcy judge, authorizing any expert appraisal and any research to determine the precise composition and valuation of the debtor's real estate, or by the liquidator's efforts to draw up an inventory of the debtor's assets, drawing up his report or requesting an estimate of the property before the three-month deadline has expired, when the first two are strictly within the scope of the mission entrusted to him by the court ruling appointing him, and the estimates are two years old . On the other hand, under Article L. 643-2 of the Commercial Code, a secured creditor may not resume the seizure of real estate if the real estate in question has been transferred by private treaty by ordinance of the bankruptcy judge, which has become res judicata, even if the acts necessary for its realization have not been carried out .

If the liquidator fails to act, a creditor holding a vendor's or moneylender's privileged claim who has declared his or her claim may, but is not obliged to, exercise his or her individual right of pursuit as soon as the three-month period from the opening of the liquidation procedure has elapsed . With regard to the sale of real estate, Article L. 643-2(3) refers to the provisions of Article L. 642-18 concerning auctions and amicable sales. The text stipulates that when real estate seizure proceedings have been initiated prior to the opening of the procedure, the creditor holding a mortgage is exempted, when individual proceedings are resumed, from the acts and formalities carried out prior to this court ruling, so that the forced sale of the property may be ordered by the bankruptcy judge, who sets the upset price and the essential conditions , in agreement with the pursuing creditor . The specifications setting out the conditions for the sale of the seized property and the upset price may not be filed without the intervention of the bankruptcy judge, failing which the seizure procedure will be invalidated and the purchase order published under the procedure in the mortgage office will be cancelled .

Article L. 643-2 refers to paragraph 5 of Article L. 642-18, under the terms of which the liquidator distributes the proceeds of sales and settles the order between creditors, subject to disputes which are concerned before the enforcement court. From this, the Court of Cassation deduced that the creditors' individual right of pursuit does not have the effect of modifying the order of payments, but only authorizes the pursuit or initiation of enforcement proceedings .

The situation provided for in Article L. 643-2 of the Commercial Code must be distinguished from that where a creditor holding a security interest or a lender's privileged claim, who has duly declared his claim, pursues the sale of a property whose declaration of unseizability is unenforceable against him. Article L. 643-2 of the Commercial Code applies only to cases where a creditor takes the place of a liquidator who has not undertaken the liquidation of the encumbered assets within three months of the liquidation, and not where the liquidator is legally prevented from acting by a declaration of unseizability that is enforceable against him. In such a case, the creditor does not need to be authorized by the bankruptcy judge to proceed with the seizure of the property, which is governed by the ordinary law on seizure of immovable property, since it is not a judicial liquidation operation . Where the seizure of the property of a debtor in a court-supervised liquidation has been duly initiated by the creditor, to whom the declaration of non-seizability is unenforceable, the bankruptcy judge commits an abuse of power by authorizing the resumption of the procedure .

CA Nancy, 25 March 2015, LawLex202300006863JBJ (LJ).

CA Nîmes, 12 October 2022, LawLex202300005236JBJ (LJ).

CA Paris, 3 May 2004, LawLex202300007452JBJ (LJ).

C. com., art. L. 642-18, al. 1er ; Cass. 2e civ., 7 June 2012, LawLex202300005071JBJ (LJ).

C. com., art. R. 643-1. For an application of this principle under the old texts, see Cass. com. 6 January 1998, LawLex202300005068JBJ (LJ).

Cass. com., 19 March 1991, LawLex202300006288JBJ (LJ).

Cass. 3e civ., 2 July 2003, LawLex202300006485JBJ (LJ).

Cass. com., 5 April 2016, LawLex202100001443JBJ (LJ); CA Rennes, 20 September 2016, LawLex202300005234JBJ (LJ); 4 May 2017, LawLex202300005244JBJ (LJ) ; CA Montpellier, 25 October 2018, LawLex202300005235JBJ (LJ).

Cass. com., 25 October 2017, LawLex202300005243JBJ (LJ).

Bankruptcy Law

932. Assumption of the right of individual pursuit by secured creditors

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

932. Assumption of the right of individual pursuit by secured creditors

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise