Bankruptcy Law

Article L. 622-30(1) of the Commercial Code, applicable to the court-supervised liquidation procedure by reference of Article L. 641-3, prohibits the registration, subsequent to the opening ruling, of mortgages, pledges, liens and privileged claims, constituted prior to the opening of the procedure, when this formality has not been carried out at that date .
Consequently, the party, whose claim fo …

Prohibition of registrations and publications subsequent to the opening court ruling

Article L. 622-30(1) of the Commercial Code, applicable to the court-supervised liquidation procedure by reference of Article L. 641-3, prohibits the registration, subsequent to the opening ruling, of mortgages, pledges, liens and privileged claims, constituted prior to the opening of the procedure, when this formality has not been carried out at that date .

Consequently, the party, whose claim for damages arises on the date of the occurrence of the damage, is not authorized to register a mortgage after the court ruling opening the liquidation procedure, simply because the final decision setting the amount of the mortgage is made after publication of the court ruling . Similarly, a mortgage constituted on a joint property may no longer be registered after the court ruling opening the insolvency procedure of the spouse in bonis, since the rights of each spouse cannot be individualized for the duration of the community . On the other hand, a mortgage registered by one of the spouses on an undivided property is valid up to the amount of his or her share in the property sold, even if the other spouse remains subject to the prohibition on registering a mortgage as a result of the opening of the insolvency procedure .

However, Article L. 622-30 does not prevent the regularization, after the opening court ruling, of a provisional registration made prior to this date. Consequently, the opening of the insolvency procedure against the debtor's guarantor does not prevent the validation of prior provisional registrations concerning real estate belonging to the guarantor . Similarly, while the reinstatement of an authorization to register a pledge is not possible after the opening court ruling, the situation is different in the case of a supplementary registration replacing a provisional registration made prior to that date . Nor does the opening of the liquidation procedure render ineffective a provisional judicial mortgage duly registered on one of the debtor's immovable property prior to the opening ruling, and does not prevent the creditor from proceeding, within the two-month period from the day on which the decision admitting or fixing his claim has become res judicata, to the definitive registration, which gives the mortgage rank on the date of the initial formality . However, a registration of a vendor's privileged claim, purporting to rectify a prior registration of a lender's privileged claim, cannot be set up against the procedure if it was registered after the opening court ruling .

Although financial leasing does not constitute a security interest formally covered by Article L. 622-30, it falls within the scope of the prohibition on registration when it concerns movable property subject to publication. In fact, according to the Court of Cassation, as soon as the lessor is no longer able to publish his right of ownership after the opening judgment, it cannot be set up against the lessee's creditors, in the absence of completion of the publication procedure regulated by Articles R. 313-4 to R. 313-11 of the Monetary and Financial Code at the court registry of the court having jurisdiction .

Lastly, Article L. 622-30(1) adds that deeds and court rulings transferring or constituting rights in rem may not be registered as from the opening judgment, unless these deeds have been established on a specific date or these rulings have become enforceable before this date. Nevertheless, an auction ruling issued prior to the opening of the procedure, but published afterwards, remains valid, even if it is not enforceable against the insolvency procedure .

Cass. com., 6 December 1994, LawLex202200002804JBJ (RJ).

Cass. com., 27 November 2019, LawLex202200002312JBJ (LJ).

Cass. com., 20 May 1997, LawLex202100002765JBJ (RJ).

Cass. com., 20 June 1995, LawLex202100002766JBJ (LJ).

See, by analogy, Cass. com, 11 April 1995, LawLex202200002805JBJ (RJ), rendered in matters of receivership, where the rules of Article L. 622-30 must be combined with those governing the nullity of the suspect period.

Cass. com., 9 May 1995, LawLex202200002807JBJ (RJ) ; CA Toulouse, 10 February 1994, LawLex202200002816JBJ (RJ).

Cass. com., 3 May 2016, LawLex202100002763JBJ (LJ) ; 17 November 1992, LawLex202100002762JBJ (RJ) ; Cass. 3e civ., 10 November 2021, LawLex202200003144JBJ (LJ).

CA Paris, 2 April 1998, LawLex202200002813JBJ (LJ).

Cass. com., 4 December 2001, LawLex202200002811JBJ (LJ).

Cass. com., 22 January 2002, LawLex202100002767JBJ (LJ).

Bankruptcy Law

782. Prohibition of registrations and publications subsequent to the opening court ruling

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782. Prohibition of registrations and publications subsequent to the opening court ruling

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