Author(s): Florin Ludușan / Language(s): Romanian
Issue: 09/2019
The final table of claims is the result of the expiration of the time limit for contestations, without such a contestation being lodged or, as the case may be, the outcome of the solutions given by the courts after the examination of the contestations. In the final table there may be entered also the current claims, at the request of their holders, and this can no longer be contested for the usual reasons for which the preliminary table could be challenged. Instead, in compliance with Article 113 of the Law No 85/2014, the final table may be contested by any party concerned (so, not only by debtors or creditors), throughout the procedure (so not just 7 days after the publication of the preliminary table in BIP) for the discovery of a forgery, of a fraud or for an essential error in the drawing up of the table or for the discovery of some decisive titles, previously unknown (called, in practice, brevitatis causa „contestation for essential error”). We have pointed out that the current regulation reiterated the error in Article 75 of the old Insolvency Law No 85/2006, whereas it only refers to the recording in the table, and not to the omission to record in the table, when it regulates the objective of the contestation.
Posting of the definitive table is an important landmark in the procedure, since a 30-day period is running therefrom during which a draft reorganization plan must be proposed, under the sanction of bankruptcy. The preliminary table of claims contains all claims accepted by the judicial administrator, as a result of the verification made under Article 106 of the Law. The claims arising before the opening of proceedings are recorded therein, both the ones overdue and the ones not due, pure and simple or conditional ones, as well as those in dispute (if these are known to the judicial administrator). On distinct positions there shall be entered both the amounts and the causes of preference requested in the claim statement by its holder and the sums and the causes of preference accepted by the judicial administrator, and in case of total or partial rejection, the reasons for the rejection shall be entered in abbreviated form (the creditor concerned is given a more detailed explanation of this motivation in a special notification issued by the court administrator, so that the creditor can lodge a contestation, if necessary). As it can be seen from the analysis of the definition of the preliminary table, the claims considered are the claims in cash, as the concept of „accepted amount” is enunciated by the judicial administrator. The preliminary table is the „work” of the judicial administrator (or of the liquidator, in case of a simplified procedure which opens directly as bankruptcy). By checking the claims and entering them into the preliminary table (which consistently entails the right of the claim holder to participate in the proceedings), the judicial administrator or the liquidator exercises a part of the judge’s ordinary functional jurisdiction, namely, that of investigation of facts. The intervention of the syndic judge is necessary only in case of contestation to the table.
The preliminary table may be challenged specifically for each position separately or for several such positions, and it may be challenged in its entirety, as a single measure of the judicial administrator entirely wrong or unlawful. The contestation may be submitted by the debtor or by any of the creditors, both in respect of their own claim and in respect of the claim of other creditors (the contesting party, in this contestation, attempts to increase their concurrent chances of recovering their own claim). If no one contests the time limit, the table becomes final, and if, however, the preliminary table is contested, the finalization of the table is postponed until the courts have finally settled the complaints. In order to accelerate the procedure, especially for the reasons of a quick judicial reorganization, some claims, whose verification in the contestation require complicated evidence, may be entered as temporarily recorded.
The time of posting of the preliminary table is an essential landmark of the procedure, since, within 5 days, the first creditors’ meeting must be held, where it is decided the final appointment of the judicial administrator, the composition of the creditors’ committee and, where appropriate, the continuation of the procedure for the purpose of a possible judicial reorganization or of an accelerated declaration of bankruptcy.
The final consolidated table is the final table of claims where there are additionally entered the claims arising after the opening of the procedure, uncontested or resulting after the admissibility of some of the contestations to the additional table. If the declaration of bankruptcy is the result of a failure of a judicial reorganization, all the claims from the final table, as well as those from the supplementary table are entered in the consolidated final table, less the claims paid under the payments schedule of the reorganization plan. In the additional table there are entered the claims arising during the procedure, until the declaration of bankruptcy, as they have been verified and accepted by the liquidator and this can be disputed, but only in respect of claims which did not appear in the final table. The additional table is a kind of preliminary table of the period that spans between the opening date of the procedure and the date of declaration of bankruptcy. Even if four types of tables is a number big enough to complicate an already complicated procedure, in practice these tables are subject to an endless process of rectification, correction of some errors, replacement of some creditors with others, exclusion from the table following the admission of some contestations or, on the contrary, inclusion in the table for the same reason, successive reduction by partial payments of some claims, etc. For this reason, although the table of claims should be the main pillar of stability and predictability of the procedure, it is actually an object and a concept with variable geometry, with which it is difficult and uncertain to work.
The present study includes a doctrinal and jurisprudential analysis of one of the four types of tables of claims mentioned, namely the final table.
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