How to file pleadings in insolvency proceedings

Currently, the content of a pleading in bankruptcy and restructuring proceedings must be uploaded to the relevant ICT system.

For some time, legislators have been seeking to implement technological innovations into the legal system. An example of an attempt to implement them into the judicial system is the Act of 6 December 2018 on the National Register of Debtors (KRZ) and of 28 May 2021 on amending the Act on KRZ and certain other acts. The adopted changes are intended to accelerate bankruptcy and restructuring proceedings and increase their efficiency. They also aim to facilitate communication between participants in insolvency proceedings. Below we discuss the most important solutions from a practical point of view.

Filing of pleadings

As of 1 December 2021, there is one basic way to file pleadings in insolvency and restructuring proceedings. This can be done by uploading the content of the pleading into the ICT system that handles court proceedings. Every participant, with few exceptions, who wants to be active in the proceedings, should use an account registered in the ICT system. Letters and documents shall be filed using electronic forms made available in the ICT system (art. 196a sec. 1 p.r., art. 216a sec. 1 p.u.). This does not apply to letters and documents containing classified information as well as bids submitted during a tender or auction.

It is worth remembering to file letters via the system. If you file it bypassing the system, it will not produce any legal effects which the Act associates with filing a letter to a court.

At the same time, the court will inform the applicant about the incorrect way of filing the letter or document as soon as it finds out about the infringement. In practice, such action of the court may take two forms. It may either order a return or actually return the letter or document to the applicant. This means that the applicant will not be called upon to file the letter in the proper manner. The applicant will not be summoned to complete formal defects by filing a letter or document using the IT system. The applicant will only receive information that his/her case will not be continued.

The information obligation of the court will not arise at all, if the letter or document was filed by a qualified entity. In bankruptcy proceedings it is a temporary court supervisor, forced administrator and receiver. In restructuring proceedings, it is the supervisor, administrator and bodies to which the provisions concerning the receiver, supervisor or administrator apply respectively (Article 216a(1) of the Banking Law and Article 196a(1) of the P.R.).

Signing and filing annexes

Pleadings and documents filed through the NCR should be affixed with a qualified electronic signature, trusted signature, personal signature or authenticated in a manner that ensures the possibility of confirming the origin and integrity of verified data in electronic form (Article 216a(1a) BCP, Article 196a(2) BCP).

Not only letters, but also all its attachments should be submitted via the ICT system. If the documents which the applicant intends to attach to the letter were drawn up in paper form, electronically certified copies of documents or electronic copies of documents are entered into the system. The applicant may affix his/her handwritten signature to a copy of a document, then make a scan or a photocopy of it and attach it to the letter in the NCR system. However, this does not apply to such documents that were created in electronic form.

If a letter filed via the system is subject to a fee (e.g. bankruptcy petition), a document proving its payment should be attached. A letter filed without a fee does not produce the effects connected with filing a letter with the court. The court shall instruct the petitioner about that (Article 130 § 6 of the Code of Civil Procedure in connection with Article 209 of BC and Article 229 of BC). This is important insofar as the applicant is not summoned to supplement fiscal deficiencies.

Certification of documents in the NCR system

The legislator has expanded the circle of entities authorized to certify documents for conformity with the original. From 1 December 2021, restructuring advisors are competent to electronically certify a copy of the attachment. Until now, they were entitled to act as an attorney in civil proceedings in bankruptcy and restructuring cases (Article 87 § 1 of the Code of Civil Procedure). However, they could not certify documents submitted during the proceedings. The power of restructuring advisors also covers cases in which the restructuring advisor acts as a participant or authority in insolvency proceedings (Article 216a(1d) of the Bankruptcy Code, Article 196a(5) of the Bankruptcy Code).

If an electronic copy of a document, which was created in a paper version, is attached to a letter, the original document or a certified copy thereof must be submitted to the court files within 3 days from the date of filing the letter. The applicant must do so without further request. He/she may use a copy certified by a professional representative or a notary public. If the deadline expires without effect, the letter shall be returned (Article 130 § 2 of the Code of Civil Procedure).

If a letter or a document is submitted via the KRZ system by a proxy, the proxy is not obliged to attach a power of attorney with the principal’s signature or a certified copy of the power of attorney together with a copy for the opposing party to the case file at the first action. Pursuant to Article 89.11 of the Code of Civil Proceedings, Article 89.1 of the Code of Civil Proceedings does not apply to bankruptcy and restructuring proceedings conducted through the KRZ system. In such a case, the attorney will only refer to the power of attorney. It is also necessary to indicate its scope and the circumstances listed in Article 87 of the Code of Civil Proceedings.

Exceptions to the obligation to use the KRZ

A number of entities, distinguished by their rights, are exempt from the obligation to file letters and documents through the KRZ system.

The possibility of filing pleadings with annexes and documents in a traditional way is available to creditors who are entitled to:

• receivables from the employment relationship, with the exception of claims for remuneration of a representative of the debtor (bankrupt) or for remuneration of a person performing activities related to the management or supervision of the debtor’s enterprise,
• alimony claims,
• annuities due to compensation for illness, inability to work, disability or death, and annuities due to conversion of rights covered by the life-establishment right into life annuity (Art. 216aa(1) BC, Art. 196b(1) BC).

The above-mentioned entities may file motions or declarations and documents at the sub-office of any district court. An employee of the sub-office then enters the submitted documents into the ICT system. Next, an employee of the court prints applications, declarations or documents placed in the system. The applicant signs the printout in the presence of an employee of the filing office. The printout is filed in the document filing system (Art. 216aa(3) PC, Art. 196b(3) PC).

However, privileged entities may file letters through the system in insolvency proceedings. The court and the judge-commissioner are bound by the declaration of the petitioner on the choice of filing letters via the ICT system.

Facilities are also provided for persons who do not conduct business activity. This applies to the situation when they file for consumer bankruptcy. In such a case, the bankruptcy petition may be filed on a form with appropriate application of the procedure described above.

Summary

The discussed changes in insolvency proceedings are intended to relieve the bankruptcy and restructuring departments of the courts. They should also improve communication. It is to be hoped that in practice they will indeed increase the effectiveness of insolvency proceedings in Poland.

This text is an extract from a practical commentary prepared by the author for Wolters Kluwer publishing house. The full version of the commentary is available to LEX system users at https://sip.lex.pl/#/publication/470177400/kowalczyk-rafal-wnoszenie-pism-procesowych-i-doreczanie-orzeczen-w-postepowaniu-upadlosciowym-i…?