When a company is declared bankrupt, it loses the authority to manage and dispose of its assets. A trustee is appointed, who alone is authorized to realize that capital and pay the creditors. This has consequences for, among other things, the manner of litigation by a creditor and a bankrupt company.
A company that has a claim against a bankrupt debtor must declare its claim in time in the bankruptcy. The trustee will either accept this claim – and pay it if sufficient money is available – or dispute it. Summons of the bankrupt himself are in principle not necessary to receive payment. Everything goes through the curator.
In certain cases it may still be necessary to summon a bankrupt natural person (an independent entrepreneur or sole proprietorship) to obtain payment. For example, because a creditor has forgotten to declare his claim in time in the bankruptcy. However, the subsequent ruling cannot be used against the trustee. The judgment can be used against the bankrupt itself if two conditions are met. First, the bankrupt may not obtain forgiveness of his debts. Secondly, he must have assets that are not bankrupt, with which he can pay his debts. The first condition requires a timely and reasoned opposition to the remission (Article XX.173, §3 of the Code of Economic Law). The second condition will be fulfilled relatively quickly for bankruptcies that were opened from 1 May 2018. The new income of the bankrupts fall outside the scope of bankruptcy (Article XX.110, §3, second paragraph of the Code of Economic Law).
Due to the bankruptcy, a bankrupt company can no longer freely choose to conduct proceedings. In principle, this decision rests with the trustee. However, there are exceptions. For example, the bankrupt natural person can initiate proceedings himself relating to his new business activity.
The Court of Cassation in a judgment of 11 October 2018 (AR F.15.0055.F) confirmed an additional exception. When a creditor starts or continues proceedings against a bankrupt debtor, instead of against the bankruptcy trustee, the bankrupt has the right to use a legal remedy (such as an appeal) against a judgment that is unfavorable to him. He does not need permission from the curator for this.
This cassation case law guarantees the right of access to the court. The judgment was delivered by Mr. Cedric Haspeslagh discussed in the Rechtskundig Weekblad (RW 2020-21, issue 18, 702-705).
Do not hesitate to contact us if you would like advice on whether or not to litigate against your bankrupt debtor. Van Steenbrugge Advocaten has a corporate cell who can assist you in matters such as bankruptcy law and attachment law.