When a debtor has refrained from drawing up the list provided for in the second paragraph of Article L. 622-6 of the Commercial Code or when, having drawn it up, he has omitted to mention a creditor therein, the creditor omitted, who seeks a statement of foreclosure, is not required to establish the existence of a causal link between this omission and the lateness of his declaration of claim.
Court of Cassation, civil, Commercial Chamber, June 16, 2021, 19-17.186, Published in the bulletin
In this case, the Court of Cassation had to answer the question of whether a creditor can obtain a statement of foreclosure on the sole condition that he has been omitted from the list of creditors – or, as in the case, that this list has never been filed – or must he, in addition, demonstrate that the debtor's omission was the cause of his failure to declare.
Classically, the creditor who does not proceed within the deadlines to the declaration of his claim to the liabilities of his debtor in collective proceedings risks seeing his right unenforceable in the procedure.
To avoid this penalty and despite exceeding the time limit, the creditor may ask the supervising judge to be relieved of the foreclosure incurred.
As such, the Commercial Code provides two possible grounds for this action. The creditor may, on the one hand, demonstrate that his failure to declare is not due to his doing and may, on the other hand, establish that his failure is due to an omission by the debtor when drawing up the list provided for in Article L. 622-6 of the French Commercial Code .
In a judgment dated June 16, 2021, the Court of Cassation returns to this last reason for the statement of foreclosure and provides interesting details on this notion of "omission ".
In this case, the disposal plan of a debtor company in receivership was decided by a judgment of June 15, 2015 for the benefit of a transferee with the option of substitution for the benefit of a company. The debtor company was placed in compulsory liquidation on June 24, 2015. However, by a judgment of July 28, 2016, published in the BODACC on August 9, 2016, the substituted company was also placed in receivership before this procedure was converted into compulsory liquidation. by a judgment of November 7, 2016.
Finally, on November 22, 2016, the resolution of the disposal plan was pronounced because it had not been executed.
On February 9, 2017, the liquidator of the debtor company submitted to the judge-commissioner of the collective proceedings of the substituted company a request for a statement of foreclosure in order to declare a claim. This request was favorably received by the supervising judge and by the Court of Appeal and the liquidator of the substituted company appealed to the Court of Cassation.
Indeed, for the judicial liquidator, when the voluntary nature of the omission of a debt or the failure to submit the list of creditors is not demonstrated, the creditor who requests the statement of foreclosure is required to establish the existence of a causal link between the said omission and the lateness of its declaration of claim.
However, according to him, the Court of Appeal confined itself to noting that the creditor who has not declared his claim within the legal time limit due to the fact that the debtor has not submitted the list must be relieved of the foreclosure incurred. In so ruling, the Court of Appeal did not look for a causal link between the omission by the debtor and the lateness of the declaration of claim. Consequently, it would have deprived its decision of a legal basis under Article L. 622-26 of the Commercial Code.
The Court of Cassation does not follow this argument and rejects the appeal.
For the High Court, it follows from the first paragraph of Article L.622-26 of the Commercial Code, in its wording resulting from Ordinance No. 2014-326 of March 12, 2014, that when a debtor has abstained from drawing up the list provided for in the second paragraph of Article L. 622-6 of the said Code or that, having drawn it up, he omitted to mention therein a creditor, the omitted creditor, who is requesting a statement of foreclosure, is not required to establish the existence of a causal link between this omission and the lateness of its declaration of claim.
The creditor omitted from the list submitted by the debtor can therefore obtain a statement of foreclosure because of this sole omission. This reason thus enshrines, in a way, a reason for a “legal” .
