The Indivisibility of Litigation in Admission to Liabilities: A Case Study

Indivisibility of the litigation of admission to liabilities

The dispute over the admission of debts to the liabilities of a collective procedure concerns, indivisibly, the creditor, the debtor and the legal representative (or the liquidator). This results in particular, in the event of an appeal against the order of the judge-commissioner ruling on the declared debt, the need for the appellant to respond to all the other parties, on pain of inadmissibility of his appeal ( Com. Sept. 29, 2015, No. 14-13.257, Dalloz Actualité, Oct. 14, 2015, observations X. Delpech; D. 2015. 2007 (debtor’s appeal); May 31, 2016, No. 14-20.882 (creditor’s appeal); September 13, 2016, No. 14-28.304 (liquidator’s appeal)).

Likewise, if the judge-commissioner declares himself incompetent due to a serious dispute, he must designate the party who will be responsible for referring the matter to the competent judge within one month (C. com., art. R. 624 -5). The party thus designated must necessarily summon all of the other parties to appear before this judge, under penalty of inadmissibility of its request (Com. September 5, 2018, no. 17-15.978, Dalloz actuality, September 19, 2018, obs . X. Delpech; D. 2018. 1751 ; ibid. 2019. 1903, obs. F.-X. Lucas and P. Cagnoli ; Gas. Pal. Jan 15, 2019, p. 74, obs. P.-M. Le Corre; BJE Nov. 2018, p. 447, obs. J. Théron). However, the Court of Cassation recently clarified that if the party responsible for seizing the competent judge within the one-month period only summons one of the two other actors cited within the one-month period, it there is still time for him to challenge the third until the judge rules (Com. June 14, 2023, n° 21-24.458 and n° 21-25.638 FB, D. 2023. 1174 ). The solution is timely and provides a welcome catch-up solution. But quid if this possibility is not used? Is an omission on this last point likely to be remedied within the framework of the remedies? This is the question that the Court of Cassation answers positively in a judgment of July 5, 2023.

The case submitted to the Court of Cassation

In this case, a bank had granted a loan to a company, guaranteed by a mortgage established by a third party. The debtor company was placed in compulsory liquidation and the procedure was extended to the grantor of the mortgage. In this extended collective procedure, the bank declared its claim on a privileged basis. The validity of the mortgage was contested. Considering that such a challenge did not fall within his jurisdiction, the judge-commissioner stayed the ruling and invited the bank to take further action. The bank then summoned the liquidator before the competent judge, but neglected to bring the debtor and, above all, the grantor of the mortgage into this proceedings. For this reason, the court declared its action inadmissible.

The bank appealed this latest judgment. The claim having been assigned, the assignee of the claim voluntarily intervened in the appeal proceedings and took a double approach. On the one hand, he called for forced intervention on the grantor of the guarantee, to whom the collective procedure was extended. On the other hand, he himself appealed the judgment by summoning the liquidator and this same grantor. To declare this last appeal inadmissible, the Chambéry Court of Appeal stated that only people who…