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Have declare your claim on timeAs explained in our previous article, this is a crucial stage when your debtor is the subject of collective proceedings (safeguard, receivership or compulsory liquidation). However, the process does not stop there. Your claim will now be examined, and others will be examined as well. important consequences of initiating the procedure will affect your rights.
It is essential to understand how your claim will be verified and potentially accepted, but also to be aware of other key rules that 'freeze' certain aspects of your relationship with the debtor: the cessation of the accrual of interest and the prohibition on taking further security over the debtor's assets. Knowing these points will enable you to better follow the progress of the proceedings and anticipate the fate of your claim.
How is your claim verified and accepted?
The declaration you have sent is not a simple administrative formality. It initiates an adversarial verification process, orchestrated by the mandataire judiciaire (or liquidator), under the supervision of the juge-commissaire. The aim is to reliably establish the company's liabilities, i.e. all its debts.
The central role of the mandataire judiciaire (or liquidator)
It is this body that receives all claims. His role, as defined in article L. 624-1 of the French Commercial Code, is to examine each claim. He checks that the declaration is in order (deadlines, form, authority of the declarant), that the claim exists, its amount, and the validity of any guarantees (liens, mortgages, etc.) invoked.
To do this, it relies on the documents you have provided as well as the accounts and information provided by the debtor. They may ask you for additional supporting documents if necessary.
The verification procedure
The trustee or liquidator works in collaboration with the debtor. The debtor is consulted on each claim and must give his opinion: does he recognise the debt? Does the debtor dispute the debt in whole or in part? The debtor's comments are important.
The trustee then draws up a list of the claims declared, indicating for each one his proposal: admission (and for what amount/nature), rejection, or possibly dismissal if there is a serious dispute or if legal proceedings were already underway before the proceedings were opened.
You should be aware that in the event of compulsory liquidationIf the liquidation is "simplified" (for small companies with no real estate and few employees), the verification process can be streamlined. The liquidator can check only those claims that are likely to be paid, given the assets available (essentially preferential claims and employee claims), as provided for in Articles L. 641-4 and L. 644-3 of the French Commercial Code. There is therefore a risk that unsecured claims will not be verified if there are insufficient funds.
If your claim is contested by the trustee
If the judicial representative (or liquidator) has any doubts about your claim or if the debtor disputes it, he must inform you by registered letter with acknowledgement of receipt. This letter must explain precisely the reasons for the dispute (amount, existence of the debt, validity of the guarantee, etc.).
You then have a strict deadline of thirty days from receipt of this letter to reply, argue the case and provide any additional information. Please note: Article L. 622-27 of the French Commercial Code is quite specific. If you do not reply within this period, you will be presumed to have accepted the trustee's proposal (for example, a rejection or an admission for a lower amount). You will no longer be able to contest the official receiver's decision if it endorses this proposal. It is therefore imperative that you react to any challenge.
The final decision of the official receiver
It is the juge-commissaire, a judge specially appointed to supervise the proceedings, who makes the final decision on the fate of the claims, in the light of the trustee's proposals and any responses or objections. Under Article L. 624-2 of the French Commercial Code, the juge-commissaire may take several types of decisions:
- Admission Your claim is recognised. The decision specifies the amount admitted and whether it is unsecured or secured. The admission may be partial.
- Discharge Your claim is not recognised in the procedure.
- Notification of ongoing proceedings If a lawsuit concerning this claim was already underway before the proceedings were opened, the official receiver will stay the proceedings. It will be necessary to wait for the outcome of these proceedings before the claim can be determined.
- Incompetence If the dispute raises a complex issue that does not fall within its jurisdiction (for example, a matter for the Conseil de Prud'hommes or an administrative court), it invites the parties to refer the matter to the competent court.
Challenging the official receiver's decision
If you do not agree with the official receiver's decision (rejection, partial admission, challenge to your lien, etc.), there are avenues of appeal, but the time limits are very short.
- For parties (you, the debtor, the judicial representative): The appeal is brought before the Court of Appeal if the amount of the principal claim exceeds the court's final jurisdiction rate (currently €5,000). Otherwise, it is an "opposition" brought before the insolvency court itself. In both cases, the time limit for taking action is ten days from notification of the official receiver's decision (articles L. 624-3, R. 621-21, R. 661-3 of the French Commercial Code).
- For interested third parties Other persons affected by the proceedings (another creditor who is contesting the admission of your claim, a guarantor who has undertaken on behalf of the debtor, etc.) may lodge a "complaint" against the statement of claims once it has been filed with the registry. They have a period of one month after publication of the filing notice in the BODACC (articles L. 624-3-1 and R. 624-8 of the Commercial Code).
The importance of final admission: res judicata
Once the admission (or rejection) decision has become final (i.e. is no longer subject to appeal), it becomes res judicata. This means that the existence, amount and nature (preferential or unsecured) of your claim are irrevocably fixed for the rest of the insolvency proceedings. It will no longer be possible to go back on it, except in very exceptional cases (fraud, material error, etc.).
Automatic suspension of interest payments
Another major consequence of the opening judgment is the interest freeze. Article L. 622-28 of the French Commercial Code states that the judgment "stops the accrual of legal and contractual interest, as well as any late payment interest or surcharges".
How does it work?
From the date of the opening judgment, interest ceases to accrue on debts arising from before on that date. This applies to all types of interest: those provided for in your contracts (loans, payment terms, etc.), statutory interest due in the event of late payment, contractual penalties calculated as interest, etc.
Which receivables are affected?
This rule applies to all previous claimsThis applies whether the debt is unsecured or guaranteed by a surety, and whatever its nature (commercial, civil, etc.).
What is the scope of this ruling?
Stopping interest is final. They will not start running again, even if a safeguard or recovery plan is subsequently adopted. This is a measure designed not to worsen the debtor's financial situation and to fix the amount of the debts.
This ruling mainly benefits the debtor. Warning: it does not always benefit the guarantors or co-guarantors who have undertaken to act on its behalf. Their situation depends on the nature of the procedure (safeguard, reorganisation, liquidation) and their status (natural or legal person), a point that will be covered in more detail in a forthcoming article.
A major exception for long-term financing
There is one notable exception to this principle: interest continues to accrue on claims arising from loan agreements concluded for a term of one year or moreas well as for contracts providing for a deferred payment of one year or more. The aim of this measure is to avoid penalising medium- and long-term financing that is essential to the economy.
If you are in this situation (for example, a bank that has granted a loan over several years), you must calculate the interest that continues to accrue after the opening judgment and include it in your statement of claim (clearly specifying the method of calculation).
Prohibition on taking out new guarantees (registrations)
The opening judgment also has the effect of freezing the existing guarantees. Article L. 622-30 of the French Commercial Code is clear: "Mortgages, pledges, collateral and liens may no longer be registered after the opening judgment.
How does it work?
After the date of the opening judgment, it is prohibited from registering again to secure an earlier claim on the debtor's assets. If you had an unsecured claim, you can no longer obtain a mortgage or pledge once the proceedings have been opened. If you had a guarantee but failed to register it (for example, a real estate vendor's lien), it is too late.
The aim is to prevent one creditor from improving its position to the detriment of others after the proceedings have been opened, and to fix the ranking of preferential creditors.
What remains possible or exceptional
This ban only applies to news registration. It does not prevent :
- Renewing an existing registration If you have a mortgage or pledge that is due to expire, you must renew it before it expires, even after the opening judgment, in order to retain your guarantee.
- Definitive registration after provisional registration If you have obtained and registered a judicial conservatory mortgage before the start of the suspect period, you will be able to make the final entry once your claim has been admitted.
There are also two very limited legal exceptions:
- The Treasury may sometimes register its lien after the judgment if the legal time limits for doing so have not yet expired.
- The seller of a business also has a short period after the sale to register his lien, and can do so even if the buyer is placed under receivership in the meantime.
Apart from these cases, the rule is that it is impossible to create new security interests published after the opening judgment to guarantee previous debts.
The verification of liabilities, the suspension of interest and the prohibition on registration are complex but essential mechanisms of insolvency law. They aim to organise the procedure in an orderly and fair manner, while trying to preserve the company's chances of recovery. For you, the creditor, understanding these rules is essential if you are to monitor the processing of your claim effectively. Navigating the intricacies of the verification of liabilities and understanding the precise impact of these rules on your situation often requires specialised legal expertise. Our firm can help you with these procedures to optimise recognition of your rights. Contact us for a personalised analysis.
Sources
- French Commercial Code, in particular articles L. 622-27, L. 622-28, L. 622-30, L. 624-1, L. 624-2, L. 624-3, L. 624-3-1, L. 641-4, L. 644-3, R. 621-21, R. 624-1 et seq, R. 624-8, R. 661-3.
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