The opening of the procedure
Management of previous receivables
What must be declared by the lessor:
- Claims corresponding to rents and accessories due and not paid prior to the opening judgment;
Under what terms?
- by the creditor or by any servant or agent of his choice;
- in writing to the legal representative or the judicial liquidator;
- within two months of the publication of the judgment opening the proceedings at BODACC.
The consequences of an undeclared debt:
During the collective procedure:
- Unenforceability of the undeclared debt in the liabilities, so that the lessor is not admitted to the distributions and dividends of the collective procedure;
- The lessor loses the privilege conferred on it by article L.622-16 of the Commercial Code .
During plan execution:
- Unenforceability that persists after the execution of a recovery or safeguard plan, so that if the plan is fully executed, the lessor will no longer be able to exercise his rights against the company.
The continuation of the procedure
The fate of the current lease
What is a current contract?
- in execution phase
- not terminated by a decision that has the force of res judicata rendered prior to the opening judgment.
The principle: continuation of the current lease
- The co-contracting party must fulfill its obligations despite the debtor's failure to perform commitments prior to the opening judgment.
- Failure to perform these commitments only entitles creditors to a declaration in the liabilities.
- An option is open to the administrator or the liquidator which can be exercised spontaneously or after formal notice from the creditor: impose the continuation of a contract or notify the termination of a contract deemed unnecessary.
Termination of the current contract
It can be a termination:
- Amicable
- Judicial
This termination is said to be "automatically":
- If the performance of the next service due under the successive performance contract is impossible
- Following the spontaneous exercise by the liquidator of the option when the benefit due is a sum of money
Management of subsequent receivables
Receivables that can be paid to the lessor
- When due, receivables relating to the execution of the lease arising after the date of delivery of the opening judgment;
- The lessor has a lien: these receivables are paid before all other receivables (whether or not accompanied by liens or securities) with the exception of those benefiting from the super privilege of wages, the privilege of legal costs or the privilege of the conciliation.
The creditor has the obligation to bring his privilege to the attention of the legal representative or the liquidator (liquidation) within one year from the end of the observation period, under penalty of losing the benefit.
What to do in the absence of payment?
All collection actions are likely to be initiated or carried out for the payment of subsequent claims, namely:
- Sending a formal notice
- The issuance of a simple command
- Issuance of an order to pay relating to the termination clause
- Actions in payment or in recognition of the acquisition of the termination clause
The only limit is that the termination of the lease contract can only be pursued under certain conditions.
Judicial termination of the current lease
The main principles:
- Impossibility for the lessor to pursue the termination of the lease for the non-payment of sums due prior to the opening of the procedure;
On the other hand, the lessor has the possibility:
- To pursue the termination of the lease for the non-payment of sums due after the opening of the procedure
- To pursue the termination of the lease for the non-performance of obligations other than to pay prior to the opening of the procedure
Applicable rules:
- Referral to the supervising judge or the summary jurisdiction is only possible after a period of three months from the opening of the procedure.
- The starting point of this period is either the date of the judgment opening judicial liquidation when it is pronounced immediately, or that of the judgment opening safeguard or receivership in the event of conversion of the procedure into liquidation. judicial
- According to a decision recently rendered by the Court of Cassation, it seems that the referral to the supervising judge was not preceded by the notification to the debtor of an order to pay relating to the termination clause inserted in the lease contract.
