Amendment to the Bankruptcy Law – change regarding the obligation to exhaust the procedure specified in the Act

Amendment to the Bankruptcy Law – change regarding the obligation to exhaust the procedure specified in the Act
Introduction

Declaring the debtor’s bankruptcy is a legally significant moment, having a number of consequences both in the area of substantive and procedural law. In particular, it suspends pending civil proceedings initiated against the debtor before the declaration of bankruptcy, if such proceedings concern the bankruptcy estate. The claim pursued in such proceedings should then be reported to the trustee and satisfied from the bankruptcy estate. According to Art. 145 sec. 1 of the APL, court proceedings instituted against the debtor may be taken against the trustee only if, in bankruptcy proceedings, the claim is not included in the list of claims after exhaustion of the procedure specified in the Act. This provision applies to all property claims against the bankrupt existing on the date of declaration of bankruptcy1 .

Exhaustion of the mode specified by law

A creditor wishing to participate in the payment of his debtor’s bankruptcy dividend is obliged to report his claim to the insolvency practitioner. This does not mean, however, that the continuation of the proceedings initiated before the declaration of bankruptcy against the debtor is not possible at all. The creditor has the right to pursue his claim in proceedings instituted against the debtor prior to the declaration of bankruptcy, if the claim for which the entitled party has brought an action is not included in the list of claims. So far, the basic problems have been caused by the interpretation of Art. 145 sec. 1 p.u. the wording “after the exhaustion of the procedure prescribed by law”. The phrase in question has been interpreted in various ways in doctrine and jurisprudence. Supporters of the first of the views pointed out that the mere refusal to recognize claims on the list is sufficient. According to the second, dominant view, exhaustion of the procedure is possible only after the bankruptcy court has examined and dismissed a complaint against the decision of the judge-commissioner refusing to recognize the claim, issued as a result of the opposition to the receiver’s refusal to recognize the claim2. According to the third view, the creditor must only challenge the refusal to recognize the claim on the list by filing an objection.

Resolution of the Supreme Court

Discrepancies in the interpretation of the term “after the exhaustion of the procedure specified in the Act” were resolved by the Supreme Court by resolution of December 9, 2019, file ref. III CZP 96/20, indicating that: “for the exhaustion of the procedure referred to in Art. 145 sec. 1 of the Act of February 28, 2003 – Bankruptcy and Rehabilitation Law, it is necessary to challenge the refusal to recognize the claim with an objection to the judge-commissioner, and if the objection is not upheld – to file an appeal to the bankruptcy court”3. In practice, the judgment of the Supreme Court limits the creditor’s ability to pursue his claim through proceedings initiated before the debtor was declared bankrupt.

The above views of the Supreme Court are approved by D. Chrapoński in the gloss to the cited resolution, pointing out that “this procedure is considered completed if the creditor has used all the means of appeal contained in Section II of the APL, and the legal protection measures applied by him did not lead to his claims being taken into account on list”4.

Amendment of the Bankruptcy Law

The Ministry of Justice has started to develop a draft act amending the Restructuring Law and the Bankruptcy Law. The aim of the project is to implement Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, discharge of debt and disqualifications and on measures to increase the effectiveness of restructuring, insolvency and discharge proceedings, and also amending Directive (EU) 2017/1132 (Restructuring and Insolvency Directive).

Article 2 point 3 of the draft provides for a change in Art. 145 p.u. The draft provides for a solution according to which “judicial, administrative or court-administrative proceedings in a case instituted against the bankrupt before the date of declaring bankruptcy for a claim which is subject to notification to the bankruptcy estate may be initiated against the trustee only if in bankruptcy proceedings, despite the notification receivables, this receivable was not included in the list of receivables and the deadline for filing an objection to the recognition or refusal to recognize this receivable expired ineffectively. In the event of an objection, court, administrative or court-administrative proceedings may be initiated against the trustee after the objection has been validly considered”5.

According to the draft act, if a claim has not been recognized in the list of claims, civil proceedings should be initiated in the following cases:

  1. the creditor did not raise an objection and the time limit for filing an objection has expired;
  2. the creditor filed an objection, which was dismissed by the judge-commissioner’s decision and the time limit for lodging an appeal against that decision has expired;
  3. the creditor lodged a complaint against the decision of the judge-commissioner issued as a result of the examination of the objection and the complaint was dismissed by a decision of the bankruptcy court.

The proposed change improves the legal situation of the creditor, who will be able to continue the proceedings initiated earlier, both after the final examination of the objection lodged with the judge-commissioner, and in the case when such an objection is not filed by him at all.

Costs of pursuing claims

Current legal solutions charge the creditor with additional costs of pursuing their claims in the form of the need to pay an objection fee and a possible complaint. In bankruptcy proceedings, the creditor cannot claim reimbursement of the costs caused by the objection or complaint from the insolvency practitioner, even if the claim is finally recognized in the list of claims. This is a different solution from the one functioning in possible civil proceedings, undertaken with the participation of the bankruptcy trustee, in which the court charges the losing party with the costs of the proceedings, i.e. in a situation where it recognizes the legitimacy of the creditor’s claim, it will charge the bankruptcy trustee with the costs of the proceedings by issuing a judgment6.

Summary

In the current legal status, the phrase “after exhaustion of the procedure specified in the Act” is understood primarily as the need for the bankruptcy court to consider and dismiss a complaint against the decision of the judge-commissioner refusing to recognize the claim, issued as a result of the opposition to the receiver’s refusal to recognize the claim. The proposed amendment to the Act will make it easier for creditors to pursue their claims, reducing the costs associated with the need to submit appeals, provided for in bankruptcy proceedings.

 


1 P. Zimmerman, Bankruptcy Law. Restructuring law. Comment. ed. 7, Warsaw 2022.
2 M. Zieliński, On the requirement of “exhaustion of the procedure specified in the Act” within the meaning of Art. 145 sec. 1 of the Bankruptcy Law, Warsaw 2018.
3 Resolution of the Supreme Court of December 9, 2019, file ref. III CZP 96/20.
4 D. Chrapoński, Gloss to the resolution of the Supreme Court of December 9, 2019, file ref. III CZP 96/20.
5 Draft Act amending the Act – Restructuring Law and the Act – Bankruptcy Law of November 2, 2021, UC120.
6 Justification of the draft act amending the Act – Restructuring Law and the Act – Bankruptcy Law of November 2, 2021, UC120.

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