Surety on a blank promissory note in the restructuring proceedings of the guarantor
Bill of exchange in restructuring proceedings
In business transactions, creditors’ claims are very often secured by the debtor handing over a blank promissory note together with the agreed promissory note declaration. Often, in accordance with the requirements set by financial institutions, such a promissory note is additionally endorsed (vouched) by third parties. While the issue of the occurrence of promissory notes in restructuring proceedings is multidimensional and may appear in various configurations, this article will discuss the situation in which restructuring proceedings were opened against an avalista, i.e. a person who guaranteed a promissory note issued by another entity. Such situations often take place in practice, in particular in the case of a surety by members of the management board / partners on a promissory note issued to secure the liability by a capital company or a spouse’s surety by a promissory note issued by a spouse. In the practice of restructuring advisors, the question often arises, how should such claims under blank promissory notes be taken into account in the course of restructuring proceedings and how should they be included in the list of claims?
Bills of exchange combined with a civil bail
At the outset, two factual situations should be distinguished. The surety on the promissory note may, but does not have to, in practice, be combined with the civil surety referred to in Art. 876 of the Civil Code. In the event that we are dealing both with a civil surety and a surety on a promissory note, the creditor will be included in the list of receivables as an unqualified creditor with voting rights and will be subject to satisfaction under the agreed arrangement. The civil surety gives rise to a personal claim between the creditor and the guarantor, which should be included in the list of claims on general terms. Failure to perform the obligation by the principal creditor is not decisive for the emergence of the guarantor’s obligation and only affects its maturity. In such a situation, the fact of having a promissory note, regardless of whether it has been filled in, does not confer any additional rights on the creditor. In particular, such a creditor will not be treated as secured and optional included in the arrangement.
The fact of having and correctly filling in a promissory note will be relevant if the obligation of the promissory note issuer (the principal debtor) turns out to be invalid. While in such a situation the civil surety may plead the invalidity of the obligation and evade payment, it will not be able to evade the liability resulting from the promissory note. Of course, having a promissory note will also have potential significance in the event of a judicial enforcement of claims, enabling the creditor to use the writ of payment proceedings. Additional rights resulting from the bill of exchange payment order (security title and immediate enforceability) will not, however, be useful in restructuring proceedings, in which, in principle, the possibility of enforcement and the execution of the security is excluded.
Promissory note surety as the sole source of liability
In practice, it also happens that the bill of exchange is not connected with a civil surety, and at the moment of opening the restructuring proceedings, the bill of exchange will remain blank. The question then arises, how to include such a claim on the list of claims? According to the jurisprudence, it should be assumed that the very surety of a blank promissory note issued with a promissory note declaration does not yet create a claim within the meaning of Art. 65 sec. 1 point 2 p.r. (see judgment of SA in Łódź of April 9, 2015, I ACa 1502/14). The claim from the promissory note guaranteed by the debtor in restructuring should be treated as a conditional claim (without voting rights), provided that in this case the promissory note is properly filled in. Only after filling in the promissory note, such a creditor will be covered by the arrangement pursuant to Art. 150 sec. 1 point 3 p.r. and will take part in the procedure on general terms.
Date of issue of the bill of exchange
The main danger for a creditor holding a blank promissory note is the prospect of its incorrect filling. It is worth noting that if the debtor (surety) is under restructuring, special attention should be paid to the date of issuing the promissory note (if it was not supplemented upon handing it over). Entering the date after the opening of the restructuring proceedings as the date of issue of the promissory note may, in practice, result in questioning the validity of the granted surety (due to the restriction or deprivation of the debtor’s right to perform management activities).