The claim is a very important act for the owner of a property within the framework of a collective procedure. Its realization is complicated by the period of Covid-19. The purpose of this communication is to raise awareness of this complication and the calculations to be made, on a case-by-case basis, and the three elements to be taken into consideration:
- End date of the state of health emergency (as it stands May 24 at midnight)
- End date of the legally protected period (as it stands May 24 + 1 month, i.e. June 24 at midnight)
- Expiry date of the initial period for claiming or referring the judge-commissioner
Emergency law n°2020-290 of March 23, 2020 to deal with the Covid-19 epidemic notably established a state of health emergency and enabled the Government to adopt, by ordinances, emergency measures related to the Coronavirus-Covid-19 crisis.
In this context, an ordinance n°2020-306 of March 25, 2020 relating to the extension of the deadlines expired during the period of health emergency and the adaptation of the procedures during this same period was adopted in particular.
What the common law provides for in terms of claims
The persons concerned by the claim
Article 2276 of the Civil Code lays down a principle according to which in matters of movables, the physical possession of a property gives rise to a presumption of ownership. This principle does not always reflect reality since the user of a good may not be its owner. To show this reality, the owners of furniture left in the hands of the debtor placed in collective proceedings must claim them. The claim action is not obligatory for all owners: it only concerns owners of movable property whose contract by which they delivered it to the debtor has not been published.
The terms of the claim action
The methods of implementing the claim
– The owner has a period of three months to claim from the publication of the opening judgment in BODACC;
– He must submit a request for acquiescence in the claim by registered letter with acknowledgment of receipt to the competent body which has a period of one month to respond:
- This is the judicial administrator in safeguard and receivership
- In the absence of an administrator, the request is addressed to the debtor who must obtain the assent of the mandatary;
- This is the judicial liquidator in judicial liquidation.
The consequences that can be given to the claim
– The competent body may acquiesce in the claim and thus recognize the right of ownership of the third party who may oppose it in the collective procedure;
– The competent body may refuse to acquiesce to the claim or fail to respond.
In either of these cases, the owner must seize the judge commissioner by way of request for claim in the month which follows the end of the time allowed to the competent body to answer. This order may be appealed within 10 days of its notification.
What is provided for by Ordinance No. 2020-306 of March 25, 2020
Article 2 of Ordinance 2020-306 provides that:
"Any act, recourse, legal action, formality, registration, declaration, notification or publication prescribed by law or regulation under penalty of nullity, sanction, lapse, foreclosure, prescription, unenforceability, inadmissibility, expiry, automatic withdrawal, application of a special regime, void or forfeiture of any right whatsoever and which should have been completed during the period mentioned in Article 1 will be deemed to have been completed on time if it was completed within a time limit which cannot exceed, from the end of this period, the time limit legally set for any act, appeal, legal action, formality, act, within the limit of two months[…]”
In practice :
This article applies, unless otherwise specially provided, to all periods which have expired or which expire between March 12, 2020 and the expiration of a period of one month from the date of termination of the state of health emergency declared under the conditions of article 4 of the emergency law of March 23, 2020, i.e., as it stands, June 24, 2020. (May 24, 2020 + 1 month = "legally protected period" )
The acts prescribed by law or regulation and which had to be carried out during this period may be carried out within two months after this period.
Application of the provisions to the claim action
– The three-month period available to the owner to claim the furniture, provided for in Article L.624-9 of the Commercial Code, falls within the scope of Article 2 of Ordinance 2020306.
This is a prefix period which, if it is not respected, has the effect of rendering the right of the owner of a property unenforceable against the bodies of the collective procedure and the creditors of the debtor.
– The period of one month from the expiry of the response period available to the owner to seize the judge-commissioner on pain of foreclosure, provided for in the 2nd paragraph of Article R.624-13 of the Commercial Code, also falls within the scope of Order 2020-306
– If this period expires between March 12, 2020 and the expiry of the “legally protected period”, the claim must be made before the expiry of the period of two months following the end of this period, i.e. within three months of the expiration of the state of health emergency.
– If it expired during the legally protected period, the period of one month provided for in the 2nd paragraph of article R.624-13, before the expiry of which the owner must, on pain of foreclosure, refer the matter to the supervising judge, runs from the end of the legally protected period.
Concrete examples (taking into consideration as the end date of the state of health emergency May 24, 2020 at midnight)
Example #1:
Opening judgment published on February 1, 2020
Claim period expiring on April 30, 2020, being extended to August 24, 2020 (May 24 + 1 month + 2 months)
Example 2:
Opening judgment rendered on March 10, 2020 published on March 20, 2020
Claim period expiring on June 20, 2020, being extended to August 24, 2020 (idem)
Example #3:
Opening judgment rendered on March 14, 2020 published on March 28, 2020
Deadline expiring on June 28, 2020 not being extended
Example #4:
Opening judgment rendered on June 14, 2020 published on June 28, 2020
Deadline expiring on September 28, 2020, not being extended
Vigilance is key
The claim action responds to a complex process of chaining of deadlines that the owner of movable property must scrupulously respect. Failing this, his right of ownership is unenforceable against the collective proceedings and against the debtor's creditors. If Ordinance No. 2020-306 tends to extend the deadlines expired during the health emergency period and to adapt the procedures during this same period, the owner must be particularly vigilant taking into account the methods of calculation of the said extension and his limits.
