Bankruptcy Law

The bankruptcy judge may relieve creditors of their foreclosure when their default is not due to their own fault, or is due to the omission of their claim by the debtor in the list of claims . Subsequent non-privileged creditors may, like prior creditors, apply to the bankruptcy judge for relief from foreclosure . The courts have sole discretion to determine whether or not the reason for the credi …

Third-party default or omission from list of creditors

The bankruptcy judge may relieve creditors of their foreclosure when their default is not due to their own fault, or is due to the omission of their claim by the debtor in the list of claims . Subsequent non-privileged creditors may, like prior creditors, apply to the bankruptcy judge for relief from foreclosure . The courts have sole discretion to determine whether or not the reason for the creditor's default is attributable to the creditor, and thus whether or not the creditor is entitled to relief from foreclosure .

A creditor may first be relieved of foreclosure if he establishes 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 as a liability by his agent, without the latter informing him . On the other hand, if the creditor takes legal action against both his debtor and the legal representatives designated in the opening judgment, he is deemed to have been aware of the opening of the insolvency procedure from that date, so that he was in a position to declare his claim in good time, and cannot be relieved of the foreclosure incurred . Similarly, a creditor who takes advantage of a lack of precision concerning the identity of the debtor, concerned in the notice to declare his claim, when clarification of the claim did not require any major investigation, does not 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 lien in the initial declaration of claim is his 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 may then be relieved of the foreclosure if he proves that the failure to declare is due to a total failure on the part of 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, because 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 because he was mentioned by name in the declaration of the state of cessation of payments and was the holder of an old and important claim which was the subject of forced collection . A debtor who declares herself 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 declaration of claim . However, the Court of Cassation provides that any concealment by the debtor of the existence of his debt, which may justify the filing of an action for relief from foreclosure, has no bearing on the starting point of the time-limit for the action, which runs from the publication of the opening judgment . A privileged creditor whom the debtor has omitted to mention in the list of creditors, and who applies for relief from foreclosure, is not required to establish that his default is not due to his own fault .

C. com. L. 622-26, para. 1, applicable to court-supervised liquidation by virtue of art. L. 641-3.

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., 26 October 2022, LawLex202200010990JBJ (S).

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

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

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

746. Third-party default or omission from list of 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