To say it with the phrases of S. Carpenter: “These are quick instances and quick nights. No time for rewrites”. Or a bit extra conventional: proper watching it.
That 'too late' is 'too late' and a creditor generally has to reside with it has skilled a mortgage creditor within the case that led to a cassation judgment of 28 April 2025 (AR C.22.0419.f).
Nevertheless, the soup doesn’t need to be eaten as scorching when it was served at first sight.
The deployment: validity of a mortgage registration
Two ideas that performed within the case in query have been the next:
- Between the collectors, a mortgage go in rank from the day of its registration within the mortgage registers (artwork. 81, first paragraph Hyp.w.);
- A mortgage registration has a validity of 30 years (artwork. 90, first paragraph Hyp.w.).
A well timed renewal of a mortgage registration is due to this fact required if a creditor desires to have the ability to (proceed to) train the privilege related to a mortgage throughout a state of coincidence.
Want for renewal in case of chapter?
Within the case of a chapter or one other type of collective seizure, the usefulness of such a renewal may very well be questioned. From the date of the chapter judgment, the rights of the collectors are crystallized. Their mutual positions are recorded (fixation precept).
Some case legislation and authorized doctrine have derived from this {that a} renewal of a mortgage registration was now not required after a chapter (HVB Antwerp 27 November 2000, RW 2000-01, ep. 14, 494; Kh. Liège September 17, 1996, Jlmb 1997, absolute. 4, 159; THIRENS F. and FRANCOIS P., ‘Commenter at artwork. 90 Hyp.W’ in Comm.Kluwer, 2014, ep. 53, 34 and 47-48, no. 55 and 76; Dirix E., 'Overview of case legislation. Certainties (1998-2003) ', TPR 2004, afl. 2, 1238, No. 114).
The Court docket of Cassation sees that considerably in a different way.
In brief, the cassation judgment of 28 April 2025 was judged that the precept of the crystallization of the rights of the collectors after chapter doesn’t apply to mortgage collectors. In response to the Court docket of Cassation, solely the rights of the chirographary and usually privileged collectors are mounted on the date of the chapter judgment. The Court docket of Cassation deduces, amongst different issues, from the rule that curiosity on mortgage -guaranteed claims don’t cease after the chapter judgment (artwork. XX.17, first paragraph Wer) and that mortgage collectors can observe a seizure on their hypotheered (artwork..
In response to the Court docket of Cassation, the dearth of crystallization for mortgage collectors leads them to resume their mortgage registration even after chapter. Within the absence of it, they lose their precedence.
Significance of a well timed declaration of declare within the chapter?
Within the decrease case legislation it was beforehand thought of in a different way. With regard to a constructing on the enterprise that was topic to a mortgage registration beneath the previous legislation, it was thought of that it was not essential to renew the mortgage registration after a chapter of the lender (HVB Antwerp 27 November 2000, RW 2000-01, ep. 14, 494; Kh. Liège September 17, 1996, Jlmb 1997, afl. 4, 159).
An essential nuance is that this decrease case legislation involved circumstances during which the claimant's declare was accepted within the privileged chapter passive. That the acceptance of a declare within the passive of a chapter is in precept an irrevocable authorized act performs an essential function on this. In any case, that irrevocality prevents the declare that the recorded declare can nonetheless be disputed (Cass. 18 June 2020, AR C.19.0322.N, TBH 2020, ep. 5, 709; Cass. 18 September 2008, AR C.07.0098.f), not solely by way of its existence and measurement, but additionally the related and by the curator of the trusted by the truster of the runator. April 28, 2025: HVB Bergen February 1, 2021, Jlmb 2021, afl. 24, 1066).
Within the case that led to the cassation judgment of 28 April 2025, it turned out that the mortgage creditor didn’t submit a declaration of declare. For the attraction courtroom, she had justified that by referring to a cassation judgment of 12 March 2020 (AR C.19.0437.N, TIBR 2020, ep. 2, Noot Haspeslagh C.). This judgment exhibits that mortgage collectors who haven’t made a well timed declaration of declare doesn’t need to panic. In any case, a scarcity of declaration of debt doesn’t result in it that they’re excluded from the distribution or rating of the gross sales proceeds of the mortgaged actual property. Separatists resembling mortgage collectors fall outdoors the property of the chapter. They’re paid precedence with the proceeds from their most well-liked story object or collateral. There’s a sub-Bedel that makes the thing of its personal rating. The dearth of declaration of debt in (the property of) the chapter doesn’t forestall the separatist from receiving cost from that sub-Bedles.
The cassation judgment of 28 April 2025 provides that in that case the non-forecast mortgage creditor should renew his mortgage registration in time. Within the absence of this, a notary who turns to rating doesn’t have a tenet to find out the ranks (artwork. 81, first paragraph and 90, first paragraph Hyp.w.).
This time too, there appears to be no too massive motive for a panic. If the mortgage creditor would have made a well timed declaration of declare that might have been accepted within the privileged chapter passive, the judgment may need a unique noise. That’s at the least what was thought of within the judgment of the Court docket of Enchantment in Mons confirmed by the Court docket of Cassation: “In different phrases, if ING's declare had been admitted in a report of verification of receivables, its contradiction could be based however such admission didn’t happen on this case. (…) Failing to have made its declare admitted to the liabilities, ING ought to due to this fact need to renew its mortgage registration to have the ability to profit from its choice proper”.
Gross sales time as an extra lifebuoy?
One other lifebuoy may very well be the time of sale. Particularly, it may very well be argued that, as a result of immovable sale by the trustees, the rights of the mortgage creditor are mounted on the date of the ultimate allocation. In any case, on that date, her mortgage (pre) rights will change to the worth (artwork. 1326, §1 Ger.W.) and the mortgage has achieved its authorized outcomes. A renewal is then now not helpful (Thierens F. and Francois P., 'commentary for artwork. 90 Hyp.w' in Comm.Kluwer, 2014, ep. 53, 35 and 43-45, no. 56 and 70-71). If the validity of the mortgage registration expires after the date of the ultimate allocation, then the mortgage creditor doesn’t lose its privilege of the worth based on this imaginative and prescient.
The cassation judgment incorporates a path of affirmation of that imaginative and prescient. In any case, the Court docket of Cassation dominated that after a chapter the mortgage creditor was obliged to resume his registration to keep up the mortgage privilege “Till what’s reported on the worth of the mortgaged property”.
This monitor can be discovered within the judgment of the Court docket of Enchantment in Mons confirmed by the Court docket of Cassation. The attraction decide thereby took the date of the switch of the notarial deed of sale as a benchmark: “Thus, if the expiration of the registration happens after the declaration of chapter, the bankrupt stays debtor; the mortgage legislation stays each its cost and the cost of the failed mass, and the creditor will usefully function the renewal of his registration, so long as has not been transcribed the act of alienation of the mortgaged buildings”.
Though this imaginative and prescient wouldn’t have supplied no aid within the case that gave rise to the cassation judgment of 28 April 2025. The validity of the mortgage registration had expired (13.07.2013) earlier than the property was bought on the initiative of the trustees (29.08.2016).
The authorized doctrine additionally warns that it may very well be thought of that the mortgage registration ought to stay legitimate and if crucial, it needs to be renewed so long as the rating regulation has not been finalized. In response to this authorized doctrine, a cautious mortgage creditor does properly to resume her mortgage registration so long as she has not obtained any cost (Thierens F. and Francois P., 'commentary for artwork. 90 Hyp.w' in Comm.Kluwer, 2014, AFL. 53, 47 no. 75).
Cedric Haspeslagh
Lawyer, desk Gent