Bankruptcy Law

Under Article L. 622-22 of the Commercial Code, applicable to court-supervised liquidation procedure by reference to Article L. 641-3, “proceedings in progress are interrupted until the pursuing creditor has declared his claim”. Proceedings are then resumed, but may only aim to establish and fix the claim, and under no circumstances to order the debtor to pay it. These provisions do not apply to c …

Limited purpose of the resumption of proceedings

Under Article L. 622-22 of the Commercial Code, applicable to court-supervised liquidation procedure by reference to Article L. 641-3, “proceedings in progress are interrupted until the pursuing creditor has declared his claim”. Proceedings are then resumed, but may only aim to establish and fix the claim, and under no circumstances to order the debtor to pay it. These provisions do not apply to claims of which the debtor is a beneficiary . Article L. 622-22 provides that proceedings in progress are resumed ipso jure, with the liquidator duly summoned , and that the debtor party to the proceedings is required to inform the pursuing creditor of the opening of the procedure within ten days.

Article R. 622-20 of the Commercial Code  stipulates that interrupted proceedings may be resumed on the initiative of the claimant creditor, as soon as he or she has provided the court hearing the case with a copy of his or her claim declaration, or any other evidence to support the inclusion of his or her claim on the list provided for under Article L. 624-1, and has summoned the organs of the procedure. The mere intervention of the employer company's liquidator in the proceedings is not sufficient to render their resumption lawful, in the absence of justification by the creditor of his claim declaration . The court may only set the amount of a party's claim, after the proceedings have been resumed, “subject to justification of the claim declaration”. He must carry out this verification before ruling , if necessary ex officio . The submissions accompanying the summons for the resumption of an ongoing proceeding and seeking to determine the claimant's claim do not constitute a declaration of claim in the hands of the liquidator . On the other hand, the court seized of the resumption for the purpose of fixing the amount of the claim must rule ex officio on the existence and amount of the claim, even if the creditor has not modified his submissions seeking an order for payment from the debtor .

A creditor who has not taken the necessary steps to resume proceedings within two years of the opening of the procedure may not avail himself of the interruption provided for in Article L. 622-22 of the Commercial Code , nor of the limitation period, which only benefits the debtor . The debtor may obtain the determination of his claim, even if he has not responded to the opinion of the liquidator proposing its rejection to the bankruptcy judge within the thirty-day time-limit, since the sanction provided for in Article L. 622-27 of the Commercial Code  is not intended to apply where proceedings on the merits were in progress on the day of the opening of the debtor's insolvency procedure . Furthermore, the court's decision to declare inadmissible a creditor's request to fix the amount of his claim, due to the dissolution of the debtor company, does not constitute a decision to reject this claim, which would result in its extinction, as the creditor retains his right to take legal action against the partners liable for the company's debts in proportion to their share in the capital . A local judge hearing an action for payment of a sum of money does not encroach on the powers of the bankruptcy judge when, after verifying whether the proceedings have been validly resumed, it merely sets the amount of the claim .

In the absence of a claim declaration, the conditions for resumption of proceedings are not met, so that even if the claim of the foreclosed creditor is not extinguished, the proceedings remain interrupted until the liquidation is closed . A judgment in favor of a creditor after the proceedings have been resumed, even though the creditor has not declared his claim within the allotted time and this irregularity has not been covered by the debtor or the organs of the procedure, must be deemed null and void . On the other hand, only the liquidator is entitled to invoke the unenforceability of a claim set after the resumption of proceedings against the court-supervised liquidation procedure, without having been summoned .

Lastly, Article R. 622-20 adds that, at the request of the liquidator, res judicata decisions handed down after the resumption of proceedings are to be concerned in the statement of claims by the the court registrar that opened the procedure.

Cass. 3e civ., 7 September 2017, LawLex202200001300JBJ (RJ).

Applicable to the court-supervised liquidation procedure by reference to art. L. 641-3, al. 4 C. com.

Cass. com., 5 September 2018, LawLex202100001210JBJ (LJ) ; 13 February 2019, LawLex202100002646JBJ (RJ).

Cass. com., 10 March 2021, LawLex202100006122JBJ (LJ).

Cass. com., 3 November 2009, LawLex202100005227JBJ (RJ).

Cass. avis, 8 June 2009, LawLex202100005225JBJ (LJ) ; Cass. com., 5 May 2015, LawLex202100002643JBJ (LJ).

Cass. com., 11 October 2011, LawLex202100002568JBJ (RJ).

Cass. com., 27 February 2007, LawLex202100002645JBJ (RJ).

Applicable to the court-supervised liquidation procedure by reference to art. R. 641-23 C. com.

See by analogy, Cass. com., 27 September 2016, LawLex202100002644JBJ (S).

Cass. com., 28 April 1998, LawLex202100005226JBJ (RJ).

Cass. com., 25 June 2002, LawLex202100002727JBJ (RJ).

See by analogy, Cass. com., 4 May 2017, LawLex202100002640JBJ (RJ).

Cass. com., 4 April 2006, LawLex202100002649JBJ (LJ).

Cass. com., 11 April 2018, LawLex202100002641JBJ (RJ).

Cass. 2e civ., 28 June 2006, LawLex202100002642JBJ (RJ).

Bankruptcy Law

719. Limited purpose of the resumption of proceedings

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719. Limited purpose of the resumption of proceedings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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