Bankruptcy Law

When a property belonging to the debtor has been sold, Article R. 643-6(1) of the Commercial Code requires the liquidator to draw up a list of creditors once the price has been paid in the case of an auction, or once the buyer has completed the purge formalities in the case of a private treaty sale. This document, which must adopt the order of payment of creditors according to their rank, is drawn …

Drawing up of a list of creditors (état de collocation)

When a property belonging to the debtor has been sold, Article R. 643-6(1) of the Commercial Code requires the liquidator to draw up a list of creditors once the price has been paid in the case of an auction, or once the buyer has completed the purge formalities in the case of a private treaty sale. This document, which must adopt the order of payment of creditors according to their rank, is drawn up in the light of registrations, admitted claims and the list of debt arising regularly after the court ruling on liquidation. The liquidator may, if he deems it useful, summon the registered creditors, the successful bidder or the purchaser.

The formality of the list of creditors applies only to sales of real estate. When both real estate and movable assets have been sold, the proceeds from the sale of movable assets, which include elements of the business that may have been classified as real estate by destination because they were used in the business operation, do not have to be added back to the price to be distributed to priority creditors, when their immobilization has ceased with the separate sale of the real estate and the business to different purchasers .

The list of creditors must classify creditors according to their rank. A creditor who has not renewed his mortgage registration by the date the statement of collocation is drawn up cannot be listed as a first-ranking mortgagee . Similarly, it can only mention claims that have been admitted. Consequently, the liquidator may not include, even provisionally, in the list of creditors claims that have been declared but are being contested . Furthermore, in order to be included in the list of creditors, subsequent claims must satisfy the conditions set out in Article L. 641-13 of the Commercial Code: the costs of the insolvency procedure may only be concerned insofar as they have been useful for the preservation and realization of the real estate sold and incurred in the common interest of the creditors . The liquidator may request preferential payment of legal costs out of the consigned price of the auctioned property, provided that the specific allocation to mortgagees does not deprive privileged creditors of their right to preferential payment out of the price, which remains in the debtor's estate until it is distributed . A court-supervised liquidator who, in his statement of collocation, has failed to include the notary's account and has erroneously shown an excessive balance due to the creditor, cannot be ordered to pay the creditor the difference between this balance and the amount actually received, since the creditor, who has received the amount due to him from the proceeds of the sale after deducting the real estate agent's fees and all the notary's and liquidator's expenses, has not suffered any harm .

Pursuant to Article R. 643-6, the liquidator must file the list with the court registry before which the procedure was initiated, so that any person may examine it. The court registrar is required to notify the creditors and the successful bidder or purchaser of the filing of list of creditors by means of an insertion in one or more legal notices and an insertion in the Official Bulletin of Civil and Commercial Announcements (BODACC), indicating the legal notice in which the first insertion was made and mentioning the time limit for contesting the statement as provided for in Article R. 643-11 . The list of creditors is also sent to the AGS at its prior request . The court registrar also sends a copy of the list of creditors to each creditor and to each creditor registered on the property, at their elected domicile, unless the bankruptcy judge waives this requirement, and indicates the time-limit and procedures for the remedy provided for in Article R. 643-11 . This article stipulates that disputes must be lodged within thirty days of the date of insertion in the BODACC of notice of the filing of the list of creditors. The creditor may not contest the list of creditors beyond this time-limit, even if service was made at the wrong address, since this is a uniform time-limit whose starting point may not vary according to individual notifications, which the bankruptcy judge may dispense with at his discretion . Challenges are made by petition delivered or addressed to the registry of the enforcement judge of the court before which the court-supervised liquidation procedure took place, or in whose jurisdiction the procedure took place . Such a challenge is valid, even if it has not been signed by a lawyer registered with the bar of the court seized of the challenge, if this substantive irregularity is covered, before the enforcement judge rules, by the filing of pleadings mentioning the constitution of a lawyer able to appear before the court seized of the challenge . The court-supervised liquidation court only hears disputes concerning the distribution of the price, which can only concern the amount of the sum to be distributed, the order of preference between creditors and the amount of the collocations .

On pain of inadmissibility, the dispute is notified to the creditors in question and the liquidator by a court commissioner's deed within ten days of its filing with the court registry. This document indicates that the creditors and the liquidator must set up a lawyer within fifteen days of the notification . If the notice sent by the court registry to the creditors does not contain the required mention, on pain of inadmissibility of the remedy, of the notification of the contestation of the list of creditors to the creditors in question and to the liquidator within ten days of its filing, the period for notification does not begin to run . A challenge to the list of creditors, and more specifically to the claim registered in the first rank, is inadmissible if it has only been notified to the court-supervised liquidator, and not also to the creditor whose claim is being challenged and to subsequent creditors . A creditor's failure to notify better-ranking registered creditors of his challenge to the statement of collocation does not affect its admissibility, since it cannot affect their situation . Lastly, when submitted to the Court of Appeal, challenges to the list of creditors drawn up in connection with the distribution by order of the sale price of an immovable property must be judged on the basis of the conclusions of the Public Prosecutor, insofar as such communication is a matter of public policy .

Cass. com., 6 February 2001, LawLex202300007260JBJ (LJ).

Cass. 3e civ., 20 November 2002, LawLex202100003070JBJ (LJ).

Cass. com., 17 October 2018, LawLex202300007475JBJ (LJ).

Cass. com., 28 June 1994, LawLex202300005075JBJ (LJ).

Cass. com., 8 July 2014, LawLex202300007476JBJ (LJ).

Cass. com., 16 September 2008, LawLex202300005074JBJ (LJ).

Cass. com., 25 September 2019, LawLex202300007477JBJ (LJ).

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Bankruptcy Law

934. Drawing up of a list of creditors (état de collocation)

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934. Drawing up of a list of creditors (état de collocation)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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