Bankruptcy Law

In the absence of any specific provisions concerning the remedies available against a judgment ruling on a request to postpone the date of cessation of payments, ordinary law reigns supreme . Unless otherwise stipulated , appeals may be lodged against first instance judgments, so that a judgment postponing the date of cessation of payments, which is not a final judgment, may be appealed .
The date …

Remedies

In the absence of any specific provisions concerning the remedies available against a judgment ruling on a request to postpone the date of cessation of payments, ordinary law reigns supreme . Unless otherwise stipulated , appeals may be lodged against first instance judgments, so that a judgment postponing the date of cessation of payments, which is not a final judgment, may be appealed .

The date of cessation of payments set in the judgment opening the insolvency procedure of a legal entity, or in the judgment of postponement, is enforceable against its manager, who, having a personal interest in criticizing this date, is entitled to lodge an appeal or a third party-opposition against this decision, depending on whether or not he has been called to the proceedings . The appeal lodged by the former manager of a debtor company against a decision to postpone the date of cessation of payments is therefore admissible when the liquidator has summoned him in the latter capacity . The debtor may not act as principal to submit a request for postponement of the date of cessation of payments to a date other than that resulting from the judgment opening the insolvency procedure or from a subsequent judgment , nor may he lodge a principal appeal against a judgment rejecting the request for postponement, even if he did not appear at first instance . On the other hand, he is entitled to lodge an appeal in cassation against a judgment which has ruled on a deferral request submitted by a third party . On the other hand, the liquidator appointed in the new insolvency procedure opened after the plan's resolution is not entitled to lodge an appeal against a ruling on an application to postpone the date of cessation of payments made in the previous procedure, whose operations have been terminated and which are now closed .

The communication to the debtor and the legal representatives of the decision by which the court postpones the date of cessation of payments , starts the time-limit for them to exercise the remedies available to them. The time-limit for the liquidator to lodge an appeal against the judgment ruling on his request to postpone the date of cessation of payments does not run from the date of notification of the decision, which is not necessary in his case, but only from the date on which the decision is communicated to him .

In accordance with Article R. 661-2 of the Commercial Code, unless otherwise stipulated, objections and third-party objections are lodged against court-supervised liquidation decisions by declaration to the court registry within ten days of delivery of the decision, and not by registered letter . However, for decisions subject to the formalities of insertion in a legal announcements medium and in the BODACC, the time-limit runs only from the day of publication in the BODACC, and not from the date of pronouncement of the decision . In particular, a creditor whose rights and obligations are not directly affected does not have to be notified of the decision to postpone the date of cessation of payments. The ten-day period for lodging objections therefore runs from the date of publication in the BODACC . A fortiori, when the postponement is likely to have an impact on the creditor's rights through the possible calling into question of a seizure-attribution carried out during the suspect period, the creditor has an interest in lodging a third-party objection against this decision as soon as it is published in the BODACC , without waiting to be sued for nullity of the deed concluded during this period . However, the Court of Cassation has provided that a decision confirming a judgment postponing the debtor's cessation of payments does not itself have to be published in the BODACC, so that the time-limit for lodging a third-party objection runs from the date of its pronouncement .

When lodging a third-party objection against the postponement decision, the creditor must summon not only the liquidator at the origin of the claim, but also the debtor . However, a creditor's remedy against a postponement judgment may also be exercised by way of voluntary intervention in the proceedings instituted by the debtor, even if the latter has subsequently withdrawn his action . However, in the absence of a third-party objection by the beneficiaries of a donation against a decision setting or postponing the date of cessation of payments, they can no longer contest this date .

Cass. com., 5 October 2010, LawLex202100004317JBJ (LJ).

Cass. com., 27 September 2011, LawLex202100004332JBJ (RJ).

Cass. com., 15 May 1990, LawLex202100004322JBJ (RJ) ; 14 May 2002, LawLex202100004323JBJ (LJ) ; 14 June 2017, cited above.

Cass. com. 15 October 2013, LawLex202100004321JBJ (LJ). See also Cass. com. 13 February 2007, LawLex202100003716JBJ (LJ), emphasizing that a date of cessation of payments set by the judgment opening the debtor's receivership, maintained by the liquidation judgment, both duly published in the BODACC, can no longer be contested by a creditor who has not lodged a third-party objection against them.

CA Basse-Terre, 28 March 2022, LawLex202200006451JBJ (LJ). Comp, Cass. com, 17 October 2018, LawLex202100004336JBJ (LJ), holding that a creditor is not entitled to pursue the nullity, by way of third-party opposition, of a deed initiating proceedings to postpone the date of cessation of payments which is not opposed to him.

Cass. com. 14 June 2017, LawLex202100001873JBJ (LJ). See also Cass. com.  17 June 2020, LawLex202100004316JBJ (LJ), emphasizing that a manager or former manager informed by the publication in the BODACC of the judgment postponing the date of cessation of payments, which is likely to have an impact on his rights, must, within ten days of this publication, file a third party-opposition to the decision, without being able to wait to be summoned for liability for insufficiency of assets.

Cass. com., 8 March 2017, LawLex202100001879JBJ (LJ).

Cass. com., 24 January 2006, LawLex202100004333JBJ (RJ).

Cass. com., 22 November 2011, LawLex202200006896JBJ (LJ).

Cass. com., 27 September 2017, LawLex202100004335JBJ (LJ).

Cass. com., 5 September 2018, LawLex202100001881JBJ (LJ).

Cass. com., 1 March 2005, LawLex202100001875JBJ (LJ).

Cass. com., 7 December 1999, LawLex202100004303JBJ (LJ).

Cass. com., 5 October 2022, LawLex202200008642JBJ (LJ).

Cass. com., 1 February 2000, LawLex202100004302JBJ (RJ).

Cass. com., 15 May 2019, LawLex202100004320JBJ (LJ).

C. com., art. R. 631-13, applicable to the receivership procedure by reference to art. R. 641-1.

Bankruptcy Law

673. Remedies

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673. Remedies

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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