PERSONAL RECOVERY PROCEDURE
The Consumer Code is amended as follows:
I. – Before Chapter I of Title III of Book III, an article L. 330-1 is inserted as follows:
“ Art. L. 330-1 . – The situation of over-indebtedness of natural persons is characterized by the manifest impossibility for the debtor in good faith to meet all of his non-professional debts due and due as well as the commitment he has given to to guarantee or to discharge jointly and severally the debt of an individual entrepreneur or of a company if he has not been, in law or in fact, a manager of the latter.
“When the debtor’s resources or realizable assets allow it, treatment measures may be prescribed before the personal over-indebtedness commission under the conditions provided for in Articles L. 331-6, L. 331-7 and L. 331- 7-1.
“When the debtor is in an irreparably compromised situation characterized by the manifest impossibility of implementing the treatment measures referred to in the second paragraph, he may request the opening of a personal recovery procedure under the conditions provided for in this title .
“The execution judge is aware of the procedure for dealing with over-indebtedness before the committee for over-indebtedness of individuals and the procedure for personal recovery. ”
II. – Article L. 331-1 is supplemented by a paragraph worded as follows:
“A person providing proof of experience in the field of social and family economy as well as a person providing proof of a diploma and in the legal field are involved in the examination of the file and attend meetings of the over-indebtedness committee in an advisory capacity. ”
III. – Article L. 331-2 is amended as follows:
1 ° The first paragraph is worded as follows:
“The commission’s mission is to deal with, under the conditions provided for in this chapter, the situation of over-indebtedness of natural persons defined in the first paragraph of Article L. 330-1. “;
2 ° In the second sentence of the second paragraph, after the words: “the household, is”, are inserted the words: “fixed by the commission after opinion of the person providing proof of experience in the field of social economy and family referred to in the last paragraph of Article L. 331-1, and ”.
IV. – In Article L. 331-3:
1 ° The first paragraph is supplemented by a sentence worded as follows:
“The latter has a period of six months from the filing of the file to proceed with its investigation and decide to its orientation. “;
2 ° The second sentence of the second paragraph is deleted;
3 ° The second paragraph is completed by a sentence worded as follows:
“In the event of rejection of a debit notice subsequent to the notification of the admissibility decision, the creditors may not collect any costs or commissions relating thereto. “;
4 ° In the first sentence of the fourth paragraph, after the words: “The debtor”, are inserted the words: “, informed of this option by the notification of the admissibility decision,”;
5 ° The sixth paragraph is completed by a sentence worded as follows:
“Information to credit institutions and Treasury accountants may be carried out by fax or by e-mail under conditions set by decree. “;
6 ° At the beginning of the eighth paragraph, the word: “she” is replaced by the words: “the commission”;
7 ° It is added two paragraphs thus worded:
“If the examination of the request shows that the debtor is in the irreparably compromised situation defined in the third paragraph of article L. 330-1, the commission, after having summoned the debtor and obtained his agreement, seizes the judge. execution for the purposes of initiating personal recovery proceedings. The failure of the debtor to respond to the summons is deemed to be the refusal of this referral. In the event of refusal by the debtor, the commission resumes its mission under the terms of Articles L. 331-6, L. 331-7 and L. 331-7-1.
“The execution judge is competent to hear appeals against decisions made by the commission in matters of admissibility and orientation of the file. ”
V. – 1. The title of Chapter II of Title III of Book III is worded as follows: “The powers of the enforcement judge in dealing with over-indebtedness situations”.
2. Before Article L. 332-1, a division is inserted entitled: “Section 1. Supervision by the judge of the measures recommended by the over-indebtedness commission” and comprising articles L. 332-1 to L. 332 -4.
VI. – After article L. 332-4, a division is inserted entitled: “Section 2. Of the personal recovery procedure” and comprising articles L. 332-5 to L. 332-12 as follows:
“Art. L. 332-5. – On the occasion of appeals brought before the execution judge to challenge the decisions of the commission in matters of orientation of the file or in application of Articles L. 331-4 and L. 332-2, the latter may , with the agreement of the debtor, decide to open a personal recovery procedure.
“If, at the end of a period of nine months from the filing of the file, the commission has not decided on its orientation, the debtor may apply to the judge for the purposes of opening a personal recovery procedure. During the three months following the expiry date of the period referred to in the first paragraph of Article L. 331-3, the interest rate applicable to all outstanding loans contracted by the debtor is the legal interest rate. , unless the committee decides otherwise during this period or the judge decides otherwise at its end.
“Art. L. 332-6. – The enforcement judge, within one month, summons the debtor and known creditors to a hearing to open the personal restoration procedure. He can invite a social worker to attend this hearing. The judge, after hearing the debtor if he presents himself and appreciating the irreparably compromised nature of his situation as well as his good faith, renders a judgment declaring the opening of the procedure.
“The judgment results in the suspension of enforcement proceedings initiated against the debtor and relating to debts other than maintenance. In the event of publication of an order for the purposes of foreclosure prior to the opening of the proceedings, the real estate foreclosure judge alone is competent to order the suspension of the proceedings. The suspension is acquired until the closing judgment.
“The execution judge may appoint an agent appearing on a list drawn up under conditions set by decree in the Council of State, have a social inquiry carried out and order social monitoring of the debtor.
“Art. L. 332-7. – The agent or, failing that, the judge takes publicity measures intended to identify the creditors who file their claims under the conditions provided for by decree of the Council of State; debts which have not been produced within a time limit fixed by this decree are extinguished, except when a foreclosure statement is pronounced by the judge. The agent takes stock of the economic and social situation of the debtor, verifies the receivables and evaluates the assets and liabilities. From the judgment pronouncing the opening of the procedure, the debtor cannot alienate his property without the agreement of the agent or, in the absence of a designated agent, of the judge.
“Art. L. 332-8. – The judge rules on any disputes over debts and pronounces the judicial liquidation of the personal assets of the debtor, from which are excluded the movable goods necessary for everyday life and non-professional goods essential for the exercise of his professional activity. It decides, if necessary, on the basis of the report submitted by the agent within four months of his appointment.
“The judge appoints a liquidator who may be the agent. The judgment pronouncing the liquidation automatically entails the debtor’s relinquishment of the disposal of his property. His rights and actions over his personal assets are exercised throughout the liquidation period by the liquidator.
“The liquidator has a period of twelve months to sell the assets of the debtor amicably or, failing that, organize a forced sale under the conditions relating to civil enforcement proceedings.
“In the event of a forced sale, when a foreclosure procedure initiated before the opening judgment has been suspended by the effect of the latter, the acts carried out by the seizing creditor are deemed to have been carried out on behalf of the liquidator who proceeds to the sale of buildings. The seizure of real estate can resume its course at the stage where the opening judgment had suspended it.
“The liquidator proceeds to the distribution of the proceeds of the assets and disinterest the creditors according to the rank of the securities accompanying their claims.
“The liquidator reports on his mission to the judge under conditions set by decree of the Council of State.
“Art. L. 332-9. – When the assets realized are sufficient to pay off the creditors, the judge pronounces the closure of the procedure. When the assets realized are insufficient to pay off the creditors or when the debtor has nothing other than furniture necessary for everyday life and non-professional property essential for the exercise of his professional activity, the judge pronounces the closure for insufficient assets.
“Closure entails the erasure of all unprofessional debts of the debtor, with the exception of those whose price has been paid instead of the debtor by the surety or the co-obligated.
“The judge can order social follow-up measures for the debtor.
“Art. L. 332-10. – Exceptionally, if he considers that judicial liquidation can be avoided, the judge establishes, if necessary on a proposal from the agent, a plan comprising the measures referred to in Article L. 331-7.
“The judgment which fixes the plan makes it enforceable against all. The duration of the plan is set by the judge. It cannot exceed ten years. In the event of non-execution of the plan, the judge pronounces its resolution.
“Art. L. 332-11. – Persons who have benefited from the personal recovery procedure are, as such, the subject of an entry in the file provided for in Article L. 333-4, for a period of eight years.
“Art. L. 332-12. – At any time during the procedure, the judge may, if he considers that the debtor’s situation is not irreparably compromised, refer the case to the commission. ”
VII. – The last paragraph of Article L. 331-6 is supplemented by two sentences worded as follows:
“Its total duration, including when it is the subject of a review or renewal, cannot exceed ten years. . The measures of the plan may exceed these deadlines when they concern the repayment of loans contracted for the purchase of real estate constituting the main residence and whose plan makes it possible to avoid the transfer by the debtor. ”
VIII. – Article L. 331-7 is amended as follows:
1 ° The beginning of the second paragraph is worded as follows:
“1 ° Reschedule the payment of debts of any kind, including, where applicable, deferring the payment of part of them, without the delay or rescheduling being able to exceed ten years or half. . (the rest unchanged). “;
2 ° The penultimate paragraph reads as follows:
“The total duration of the recommendations may not exceed ten years. They may, however, exceed this period when they concern the repayment of loans contracted during the purchase of real estate constituting the main residence and whose recommendations of the committee make it possible to avoid the transfer. Tax debts are rescheduled under the same conditions as other debts. ”
IX. – In article L. 331-7-1:
1 ° In the first sentence of the first paragraph, after the word: “ascertains”, the words are inserted: “, without retaining its irremediable nature,”;
2 ° In the first sentence of the first paragraph, the words: “or fiscal” are deleted;
3 ° In the first sentence of the first paragraph, the words: “three years” are replaced by the words: “two years”;
4 ° The second paragraph is deleted;
5 ° In the third sentence of the last paragraph, the words: “total or partial cancellation of claims other than food or tax” are replaced by the words: “partial cancellation of claims. Those for which the price has been paid in place of the debtor by the surety or the co-obligated may not be the object of an erasure ”;
6 ° The penultimate sentence of the third paragraph reads as follows:
“Tax debts are subject to total or partial remission under the same conditions as other debts. ”
X. – After article L. 331-7-1, an article L. 331-7-2 is inserted as follows:
“Art. L. 331-7-2. – If, during the execution of a contractual plan or recommendations, it appears that the debtor’s situation becomes irreparably compromised under the conditions provided for in the third paragraph of article L. 330-1, the debtor may refer the matter to the commission. in order to benefit from a personal recovery procedure. After having noted the good faith of the debtor, the commission seizes the execution judge for the purposes of opening the procedure. The plan or recommendations whose execution has been interrupted are null and void. ”
XI. – Article L. 333-1 is worded as follows:
“Art. L. 333-1. – Unless the creditor agrees, the following are excluded from any postponement, rescheduling or erasure:
“1 ° Maintenance debts;
“2 ° Pecuniary reparations granted to victims in the context of a criminal conviction.
“The fines pronounced within the framework of a penal conviction are excluded from any postponement, any rescheduling or erasure. ”
XII. – Article L. 333-2 is amended as follows:
1 ° In the second paragraph, the words: “in order to obtain the benefit of the procedure for dealing with the over-indebtedness situation” are deleted;
2 ° In the third paragraph, the words: “, for the same purpose,” are deleted;
3 ° In the last paragraph, after the word: “over-indebtedness”, the words: “or personal recovery” are inserted.
XIII. – The second sentence of the third paragraph of article L. 333-4 is completed by the words: “or when the debtor has benefited from the cancellation of debts resulting from the personal reinstatement procedure in application of article L. 332-9 ”and, in the fourth and fifth paragraphs of the same article, the number:“ eight ”is replaced by the number:“ ten ”.
At the beginning of the first sentence of the third paragraph of Article L. 333-4 of the Consumer Code, the words: “When the commission instituted in Article L. 331-1 has verified that the debtor who has seized is in the situation referred to in article L. 331-2 “are replaced by the words:” As soon as the commission instituted in article L. 331-1 is seized by a debtor in application of the first paragraph of l ‘Article L. 331-3 ”.
Article L. 628-1 of the Commercial Code is thus amended:
1 ° In the first paragraph, after the words: “when they are”, the words: “in good faith and” are inserted;
2 ° The last paragraph is replaced by three paragraphs worded as follows:
“Before a decision is taken on the opening of the procedure, the court appoints, if it considers it useful, a competent person chosen from the list of bodies. approved, to collect all information on the economic and social situation of the debtor.
“The disqualifications and prohibitions resulting from personal bankruptcy are not applicable to these people.
“The terms of application of this article are fixed by decree. ”
- – Articles L. 628-2 and L. 628-3 of the Commercial Code become respectively Articles L. 628-7 and L. 628-8.II.- In 6 ° of Article L. 920-1, in 5 ° of Article L. 930-1, in 5 ° of Article L. 940-1 and in 6 ° of Article L. 950-1 of the same code, the reference: “L. 628-3” is replaced by the reference: “L. 628-8”.
After article L. 628-1 of the commercial code, two articles L. 628-2 and L. 628-3 are re-established as follows:
“Art. L. 628-2. – Unless dispensed with ordered by the judge-commissioner, an inventory of the property of the persons referred to in Article L. 628-1 is carried out.
“Art. L. 628-3. – By way of derogation from Article L. 621-102, in the event of judicial liquidation, debts are not verified if it appears that the proceeds from the realization of the asset will be entirely absorbed by the legal costs, unless the judge-commissioner decides otherwise. ”
After article L. 628-1 of the commercial code, an article L. 628-4 is inserted as follows:
“Art. L. 628-4. – When closing liquidation operations, the court may, exceptionally, impose on the debtor a contribution intended for the clearance of liabilities in the proportions it determines. The court designates in this judgment a commissioner responsible for overseeing the execution of the contribution.
“To fix the proportions of the contribution, the court takes into account the contributory faculties of the debtor determined with regard to his irreducible resources and charges. The court reduces the amount of the contribution in the event of a reduction in resources or an increase in the contributor’s charges.
“The terms of application of this article are fixed by decree. ”
After article L. 628-1 of the commercial code, an article L. 628-5 is inserted as follows:
“Art. L. 628-5. – In addition to the cases provided for in Article L. 622-32, creditors also recover their right of individual action against the debtor when the court finds, of its own motion or at the request of the auditor, the non-performance of the contribution referred to in Article L. 628-4. ”
After article L. 628-1 of the commercial code, an article L. 628-6 is inserted as follows:
“Art. L. 628-6. – The judgment pronouncing judicial liquidation is mentioned for a period of eight years in the file provided for in Article L. 333-4 of the Consumer Code and is no longer mentioned in the criminal record of the person concerned. . ”
Before December 31, 2008, the Government submits a report to the desk of the two parliamentary assemblies in which it presents and assesses the conditions for implementation, the relevance and effectiveness of the personal recovery procedure and other measures taken in this area. prevention and treatment of over-indebtedness within the framework of this law. Where appropriate, this report considers new legislative and regulatory measures.
Article 1740 octies of the general tax code is supplemented by an II worded as follows:
“II. – In the event of implementation of the personal recovery procedure provided for in Article L. 332-6 of the Consumer Code, the surcharges, prosecution costs and tax penalties incurred in terms of direct taxes due on the date of the opening judgment are delivered, with the exception of the increases provided for in 3 of article 1728 and in article 1729. ”
- – After the word: “indigence”, the end of 1 ° of article L. 247 of the book of tax procedures is deleted.II.- An article L. 247 A is inserted in the same book as follows:
“Art.L. 247 A. – Taxpayers in good faith, in a situation of embarrassment or indigence, who have filed a request with the personal over-indebtedness commission referred to in Article L. 331-1 of the Consumer Code statement of tax debts and which are not the subject of a personal reinstatement procedure provided for in Article L. 332-6 of the said code benefit from a direct tax discount at least equivalent to that recommended by the said commission for other receivables. “
I. – The Government is authorized, under the conditions provided for in article 38 of the Constitution and subject to the competences of local institutions, to take by ordinance the measures allowing to extend with the necessary adaptations, in French Polynesia, in New -Caledonia, in the Wallis and Futuna Islands and in Mayotte, the provisions relating to the over-indebtedness of individuals.
II. – The draft ordinances are, depending on the case, submitted for opinion:
1 ° To the competent institutions provided for respectively by the organic law n ° 96-312 of April 12, 1996 on the statute of autonomy of French Polynesia, by the organic law n ° 99-209 of March 19, 1999 relating to New Caledonia and by article L. 3551-12 of the general code of local authorities;
2 ° To the territorial assembly of the Wallis and Futuna Islands. The notice is then issued within one month; after this period has expired, the notice is deemed to have been given.
The draft ordinances including provisions relating to French Polynesia are also submitted to the assembly of this territory.
III. – The ordinances will be taken at the latest on the last day of the twelfth month following the promulgation of this law.
The bill ratifying these ordinances will be tabled in Parliament within twelve months of its publication.