Practical aspects of appealing against inventory of claims
There is no doubt that the inventory of claims is one of the key documents arising in the course of the restructuring procedure. The supervisor or the administrator prepares the inventory exclusively on the basis of the debtor’s accounting books, other documents, entries in the land and mortgage registers and registers. Restructuring law does not provide for the declaration of claims by creditors. The inventory should include not only receivables covered by the arrangement by virtue of law, but also receivables which may be covered by the arrangement with the creditor’s consent, both pecuniary and non-pecuniary receivables, both public and civil, including contingent receivables.
The simplified procedure and the time limit for preparing the inventory (between 14 and 30 days, depending on the restructuring procedure) may result in a discrepancy between the factual situation and the situation included in the inventory of claims. Such situations will make it necessary to challenge the inventory.
In the accelerated arrangement procedure, due to its relatively short duration, neither the creditors nor the debtor are entitled to object. Only the latter may object to the inclusion of the claim in the inventory, which consequently leads to the transfer of the claim to the list of disputed claims. The list of claims shall then be approved by the official receiver at the creditors meeting. What are the possibilities for action for a creditor who does not agree with the contents of the inventory? The only way forward seems to be to raise objections in this respect in the complaint against the decision approving the agreement. However, any allegation of the inclusion of a claim in a census shall be admissible only to the extent that it affects the determination of its acceptance and subsequent approval of the arrangement. For example, a creditor may prove that a lower amount of the claim is included in the inventory than is actually the case. If this difference had an impact on the outcome of the vote on the agreement and the higher the amount, the vote would have had a different outcome, the objection raised must be examined. If, on the other hand, the indicated difference in the amount of receivables did not affect the result of voting, then a court decision on the amount of receivables would be unnecessary as it would be insignificant to determine the admissibility of approval of the composition. It should not be forgotten that the purpose of restructuring proceedings is not to determine the extent of creditors’ claims. Doubts in this respect should be settled by the procedural courts.
However, in composition and winding-up proceedings, both the debtor and each of the creditors may file an objection to the entry or omission of the claim on the register. Any objection must be lodged with the Commissioner’s Judge within two weeks of the publication of the Inventory of Claims. Solutions have been adopted for the institutions of opposition with a view to a simplified and expedited settlement. First of all, the only admissible means of evidence is documentary evidence or an expert opinion, and it is possible to use an opinion drawn up in another procedure concerning the scope of the opposition. It is also a rule of law that the judge-commissary disregards evidence and statements not made in the opposition itself but at a later stage of its examination. It is also not necessary to hold a hearing, and in the event of a hearing, the failure to appear of any of the summoned persons does not suspend the examination of the objection.
The opposition fee shall be a fifth of the relative fee. This means that first the relative fee of up to PLN 100,000 should be calculated, and only then 1/5 of this value should be calculated. This means that the opposition fee may not be higher than PLN 20,000. It may sometimes be difficult to determine the value of the object of the dispute, from which a relative fee should then be calculated. A case is simple if the complainant challenges or asserts a certain amount of money – then that amount is the basis for the calculation. However, if the subject matter of the dispute is exclusively the scope of the security (e.g. failure to take into account the security at all, but also the dispute as to the value of the security object, and consequently the scope of the agreement), then in such a situation the relative fee should be calculated on the actual value of the dispute, i.e. on the difference between the value of the security indicated in the opposition and the value recognised in the register of claims.
The res judicata
Although the provision explicitly states that a claim may be entered or omitted from the register, it is clear that all circumstances relevant to the exercise of the creditor’s rights in the course of the restructuring procedure may be included in the scope of the challenge. Thus, in addition to the mere placing or omission of the claim, only a certain extent of the amount recognised or omitted, the taking into account or omitting of the security, its extent – also as regards the value of the object – can be complained about.