Filing a proof of debt: the two-month deadline, what missing it costs, and what to put in it

The opening judgment closes the routes you were taking. Article L. 622-21 of the French Commercial Code stays or bars any action by pre-existing creditors seeking an order to pay a sum of money, and halts enforcement measures. The injonction de payer you were preparing, the attachment you had just obtained: without purpose.

The chasing letter changes status too. Filing a proof of debt dispenses with any formal notice, interrupts the limitation period until the proceedings close and counts as a step in the pursuit of the debt (article L. 622-25-1). The step that mattered last week no longer counts, and what a formal notice triggers while no proceedings are open belongs to the file's past.

One route remains: from publication of the judgment, all creditors whose debt arose beforehand — apart from employees, whose claims go through the schedules drawn up by the insolvency practitioner — send their proof of debt to the mandataire judiciaire (article L. 622-24).

The regime is written for sauvegarde proceedings. It applies as it stands to redressement judiciaire (article L. 631-14) and to liquidation, where creditors file with the liquidator under articles L. 622-24 to L. 622-27 (article L. 641-3). One regime, three procedures: which one has been opened changes what you will receive at the end, not how you file.

What happens next turns on the classification adopted — pre- or post-opening, preferential or unsecured — and that is arguable. This is the moment to decide whether to run the file alone or to be assisted in having the debt classified and following the proceedings through to distribution.

The period is two months from publication of the opening judgment in the Bulletin officiel des annonces civiles et commerciales (article R. 622-24). Not the date of the judgment, not the day you heard the news, not the receipt of a letter: the publication.

The same provision extends it by two months for creditors not resident within the territory of the court that opened the proceedings — four months, then, for a creditor established outside metropolitan France where the court sits in metropolitan France, the rule being written symmetrically for the overseas territories.

Creditors who receive a notice

The insolvency practitioner notifies known creditors within fifteen days of the judgment, and that notice reproduces the provisions on time limits, on applying for relief from the time bar and on claims to recover goods. Creditors holding a registered security, or bound to the debtor by a registered contract, are notified personally, by recorded delivery letter with acknowledgement of receipt (article R. 622-21).

One point deserves close reading, because it is often summarised too quickly: article R. 622-24 does not move their starting point. Its four paragraphs know only publication in the BODACC. What the code does expressly move for them is the start of the six months for relief from the time bar, which runs from receipt of the notice (article L. 622-26). The effect of a late notice on the filing period itself is a matter for argument — before the juge-commissaire, which is already a reason not to build a case on a letter that never arrived.

Debts arising after the judgment

Not all of them have to be filed, and those that escape are nonetheless subject to a period. Debts properly arising after the judgment for the purposes of the proceedings or of the observation period, or in return for a service provided during that period, are paid as they fall due (article L. 622-17 I). If unpaid, they lose their priority for want of having been brought to the attention of the competent officer within one year from the end of the observation period.

The others must be filed. Where they arise from a contract performed over time — a lease, maintenance, a subscription — they are filed for the whole of the sums due and to fall due, on the basis of an estimate, within two months of publication; and where the contract was entered into after the judgment, within two months of the first unpaid instalment, whether or not it was later put right (article R. 622-22).

The last line is the one people forget: it runs in parallel, it is shorter, and it concerns a different step from filing. A supplier who files its proof of debt and lets its claim to recover the goods lapse has done half the work.

The idea that an unfiled debt is extinguished dies hard, and it has been wrong since Ordinance no. 2014-326 of 12 March 2014. The current wording does not say “extinguished”, it says unenforceable — and the distinction decides several things.

Failing filing within the time allowed, creditors are not admitted to distributions and dividends unless relieved from the time bar (article L. 622-26). Debts and the securities backing them that are not properly filed are unenforceable against the debtor during the performance of the plan, and after that performance where the undertakings set out in the plan have been kept.

Then comes the paragraph creditors discover last: on the same conditions, those debts are also unenforceable against individuals who are jointly liable, or who have given a personal security, or who have charged or transferred an asset by way of guarantee. The creditor who did not file because he “had the director's guarantee” therefore loses, during the performance of the plan, precisely what he was counting on.

In liquidation, where there is no plan to perform, the distinction stays theoretical: without admission, there is no distribution.

One last point fixes the amount to state in the filing. The opening judgment stops interest running — statutory and contractual, together with all late-payment interest and surcharges — save for loan contracts or contracts with deferred payment of one year or more; individual guarantors may rely on this (article L. 622-28). The debt is filed as at the day of the judgment, not as at the date of drafting.

A missed deadline is not always lost. The juge-commissaire may relieve the creditor from the time bar, and the code opens only two grounds: that the failure is not attributable to the creditor, or that it is due to an omission by the debtor when drawing up the list of its creditors (article L. 622-26). The first covers the creditor who could not have known; the second, the creditor the debtor did not list.

The application may only be brought within six months, and that period has three possible starting points:

• publication of the opening judgment, the ordinary case;
• receipt of the notice, for holders of a registered security or a registered contract;
• the date on which it is established that the creditor could no longer be unaware of its debt, where it shows that it was unable to know of the debtor's obligation before the six months expired.

Relief, when granted, does not recover everything: the creditor takes part only in distributions made after its application. A distribution already made is not redone. And the costs fall on the defaulting creditor, save where its debt did not appear on the list provided by the debtor (article R. 622-25).

No provision imposes a form. What the law requires is content — which is why a filing copied from a generic template misses the point as soon as the debt is out of the ordinary.

Article L. 622-25 sets the base. The filing states the amount of the debt due as at the day of the opening judgment, indicating the sums to fall due and the dates on which they fall due. It specifies the nature and the subject matter of any security backing the debt and, where applicable, whether a contractual security interest has been created over the debtor's assets to secure a third party's debt. Debts in foreign currency are converted at the exchange rate on the date of the judgment. Except where it arises from an enforceable title, the debt filed is certified as accurate by the creditor; the juge-commissaire may require it to be endorsed by a statutory auditor or, failing that, by a chartered accountant.

Article R. 622-23 adds what goes with the figure: the material capable of proving the existence and the amount of the debt, how interest is calculated, the identity of the court seised if the debt is in dispute, and the supporting documents attached in copy under a schedule.

A debt whose final amount is not known must still be filed: filing is required even where the debt is not established by a title, and a debt whose amount is not finally fixed is filed on the basis of an estimate (article L. 622-24). Pending litigation does not excuse filing; it changes how the figure is arrived at.

The filing is addressed to the mandataire judiciaire in sauvegarde and redressement, and to the liquidator in liquidation. Not to the court registry, not to the administrateur judiciaire where one has been appointed, and not to the debtor. The officer's name and address appear in the notice published in the BODACC — the same notice that started the period running.

It may be made by the creditor, or by any employee or agent of its choosing, and the creditor may ratify a filing made in its name until the court rules on admission (article L. 622-24). That ratification has a concrete use: it cures the challenge to authority regularly raised against filings signed by an accounts department.

The filing the debtor may already have made for you

Here is the provision that upends the intuition. Where the debtor has brought a debt to the insolvency practitioner's attention, it is presumed to have acted on the creditor's behalf until the creditor has sent its own filing (article L. 622-24).

The presumption protects the careless and traps the trusting. It brings the debt into the proceedings, but for the amount and with the classification the debtor gave it — a net-of-VAT ledger balance, accrued interest forgotten, an unmentioned security that turns a secured debt into an unsecured one. Filing yourself remains the only way to fix your own figure.

The channel, and the date that counts

Since 2015 the national council of administrateurs and mandataires judiciaires has run an electronic filing portal, open to creditors and their advisers, which issues a dated filing receipt. Recorded delivery with acknowledgement of receipt remains the classic route.

No provision settles whether the date of dispatch or the date of receipt governs — that is a point for argument, and one there is no interest in raising. The consequence is one line long: do not file on the last day.

Composite example — real cases are covered by professional secrecy (article 226-13 of the French Criminal Code). A components manufacturer learns in October that its main customer is in redressement judiciaire. The debtor's accountant reassures him: “you are on the list”. Nobody files. The insolvency practitioner records the debt as it appeared in the ledger: net of VAT, interest not counted, and not a word about the retention of title covering the unpaid stock. The debt is admitted — for a lower amount, and without the guarantee that gave it its value. Nothing was missed in terms of the deadline; everything was lost in terms of the figure.

Waiting for the insolvency practitioner's letter. Only creditors holding a registered security or a registered contract are notified personally by recorded delivery. The others are notified if they are known, and a supplier who does not appear in the debtor's accounts is not. The BODACC, for its part, starts the period running for everyone.

Filing the ledger balance. The figure on a customer account is not the amount of a debt: it ignores accrued interest and sums to fall due, and says nothing about security. A secured debt filed without mention of its security is treated as an ordinary debt, and rank decides everything in a distribution.

Relying on the debtor's list. The presumption in article L. 622-24 is a safety net, not a method. It brings you into the proceedings with the figures of the party that did not pay you.

A BODACC notice concerning one of your customers, and a doubt about what is left to do? The simplest course is to send us the BODACC notice and your documents: the scope and the amount are announced before the engagement, including where the answer amounts to one filing to be sent within the week.