Bankruptcy Law

Under the terms of Article L. 643-11, V of the Commercial Code, creditors who, by way of exception, recover their right to take individual legal action and whose claims have been allowed, may not exercise this right without having obtained an enforcement order . These provisions apply only to the closure of a business due to insufficient assets . In the absence of an enforcement order, the claim r …

Requirement of an enforcement order

Under the terms of Article L. 643-11, V of the Commercial Code, creditors who, by way of exception, recover their right to take individual legal action and whose claims have been allowed, may not exercise this right without having obtained an enforcement order . These provisions apply only to the closure of a business due to insufficient assets . In the absence of an enforcement order, the claim remains unpaid . Consequently, if the creditor does not have an enforcement order following the closure of the debtor's court-supervised liquidation on grounds of insufficient assets, the seizure of wages must be ordered .

The president of the court, upon receipt of an application for the issuance of an enforcement order, assesses the exception invoked by the creditor. The production of a criminal conviction for tax fraud , or proof of fraud, which need not necessarily have been committed during the course of the insolvency procedure , will help him decide. In principle, an appeal against an order on ex parte application (injunction) must be lodged within fifteen days . However, a creditor who has not been notified of an order issued in response to an application for a writ of execution may lodge an appeal more than six months after the order was issued . Furthermore, the President of the Commercial Court has no jurisdiction to rule on a writ of summons for the revocation of an order granting an enforcement order to a creditor, since only the appeal procedure is open to the debtor, subject to the conditions of form and time limits applicable under ordinary law .

Since the Ordinance of 18 December 2008 , Article L. 643-11, V provides that where creditors already have an enforcement order prior to the opening of the court-supervised liquidation, they may not take action without having the president of the court declare that they meet the legal conditions. The ordinance enshrines previous case law, which already required creditors, even those holding an enforcement order, to have it recognized that they met the legal conditions for resuming the exercise of their individual right of pursuit . This requirement should not, however, be understood as requiring the creditor to obtain a new enforcement order  once it has been acknowledged that he meets the legal conditions .

Creditors whose claims have not been verified are not subject to the same rules: by virtue of paragraph 2 of Article L. 643-11, V they recover the individual exercise of their actions under the conditions of ordinary law . Thus, in the absence of verification and hence admission of the claim, the application for an enforcement order against a debtor whose procedure has been closed for lack of assets must necessarily be made to the court under ordinary law, so that it can order payment .

The resumption of proceedings, when admitted, does not necessarily mean that the creditor will be able to recover the amount of his claim or obtain satisfactory compensation for his harm. First and foremost, the creditor may not claim interest payments relating to the period of the insolvency procedure. This is because Article L. 643-11 of the Commercial Code has no retroactive effect and, by way of exception, authorizes the resumption of individual proceedings only from the date of closure of the judicial liquidation . Secondly, the harm suffered by an unsecured creditor who has not benefited from the warning to creditors to declare their claims as a result of his omission from the certified list of creditors and the amount of debts, due to the debtor's fraud, cannot be compensated up to the amount of his unpaid claim .

Cass. 2e civ. 19 November 2009, LawLex202300006757JBJ (LJ), holding that a guarantor who wishes to obtain the seizure of the wages of a debtor whose judicial liquidation has been closed for lack of assets must have an enforcement order issued by order of the court president; Cass. com, 10 May 2005, LawLex202300006727JBJ (LJ); CA Montpellier, 8 December 2015, LawLex202300006742JBJ (LJ); CA Reims, 9 August 2005, LawLex202300007454JBJ (LJ).

Cass. com., 17 December 2013, LawLex202300006879JBJ (LJ).

Cass. com., 18 January 2005, LawLex202100001926JBJ (LJ).

Cass. com., 29 April 2014, LawLex202300006759JBJ (LJ); 16 June 2014, LawLex202300006760JBJ (LJ).

Cass. com., 24 March 2004, LawLex202100001925JBJ (LJ); 7 December 2004, LawLex202300006758JBJ (LJ).

CA Caen, 29 November 2007, LawLex202300006746JBJ (LJ).

Cass. com., 17 November 2009, LawLex202300006276JBJ (LJ); LawLex202300006277JBJ (LJ).

Cons. d'Et., 13 February 2019, LawLex202300006652JBJ (LJ), holding that the public accountant must, in order to recover the tax claim admitted to the liabilities of a debtor placed in a court-supervised liquidation and having been prohibited from managing or controlling a commercial enterprise, seize, the president of the competent commercial court to establish that the conditions for reopening individual legal proceedings have been met, failing which the claim remains unpaid.

Cass. com., 16 June 2004, LawLex202300006756JBJ (LJ).

Cass. com., 28 June 2011, LawLex202300006278JBJ (LJ).

Cass. com., 15 February 2005, LawLex202300006710JBJ (LJ).

Cass. com., 4 March 2014, LawLex202300006714JBJ (LJ).

Cass. com., 15 November 2005, LawLex202300006762JBJ (LJ); 13 February 2007, LawLex202300006761JBJ (LJ).

Ordinance 2008-1345 of 18 December 2008 concerning the reform of the law governing companies in difficulty.

Bankruptcy Law

951. Requirement of an enforcement order

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951. Requirement of an enforcement order

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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