The list of claims plays a substantial role in every restructuring. It comprehensively identifies personal claims against the debtor arising before proceedings open. Correct inclusion matters both to each creditor and creditors collectively. It enables an individual creditor to participate actively and determines voting strength, based partly on the claim amount. It also enables obtaining an enforcement title[1] which, with an enforcement clause, can support execution, as discussed in “What does an enforcement title obtained in restructuring proceedings offer?”. Collectively, an accurate list determines total claims participating in proceedings and voting, and recovery levels, for example during arrangement performance.
In practice, creditors may disagree because:
- a claim was wrongly included;
- a claim was wrongly omitted.
The legislature permits challenges in arrangement and remedial proceedings through objections to inclusion or omission. Below we examine this protection.
Where to file an objection
File with the judge-commissioner, who hears it at first instance. Under Article 95(1) of the Restructuring Law[2], a deputy judge-commissioner or another designated judge may also decide.
Deadline
The objection must be filed within two weeks of announcement in the relevant register that the list has been submitted[3].
How to file
The method depends on the restructuring application’s date. For applications filed after 1 December 2021, objections must be submitted electronically through the National Register of Debtors, subject to limited exceptions.
For applications filed before 1 December 2021, paper filing applies. Such cases are now unlikely, since compiling the list is an early stage and announcements in most earlier proceedings will already have occurred.
Formal requirements
The objection must satisfy Article 126 of the Code of Civil Procedure[4] and additional requirements: identify the omitted or challenged claim, request its inclusion or omission, and provide reasons and supporting evidence. An omission objection requires additional identifying information about the creditor and claim under Article 92(2) of the Restructuring Law, understandably because these are generally the first details of that creditor in proceedings. The fee is one-fifth of the proportional court fee.
Available evidence is limited. Documents are the principal form; expert opinions are also admissible. Witness testimony, party examination and inspections, for example, are excluded.
All facts and evidence should be included comprehensively, otherwise they may be disregarded unless the party substantiates absence of fault in omitting them or shows that late material will not delay the case.
Responding to an objection
The judge-commissioner serves the objection on other participants, who may respond within a specified period of at least one week. Who may respond depends on the subject. For inclusion objections, this includes the debtor, court supervisor or administrator, depending on the proceedings, and the creditor whose claim is challenged. For omission objections, only the debtor and supervisor or administrator respond.
Determination
The judge-commissioner, deputy or designated judge decides in closed session within two months, an indicative deadline only. If a hearing is considered necessary, the supervisor or administrator, debtor and creditor are notified. Even justified non-attendance does not prevent an order. The judge may dispense with a new expert opinion where one exists from other proceedings, using the documents containing it as evidence.
Appealing the first-instance order
The creditor and other participants may appeal.
The appeal goes to the district restructuring court through the deciding judge within one week. Electronic or paper filing depends on the restructuring application date, as above. The appellate court may set aside and remit only where all evidence must be taken anew or procedural invalidity cannot be cured on appeal. Its order is unchallengeable and final when issued. If a creditor’s appeal fails and the claim remains excluded, ordinary litigation may still be considered, as discussed below.
Amending the list
Once an order upholding an objection becomes final, the judge-commissioner makes corresponding technical amendments to the list.
What if an objection is no longer possible?
If, for example, the deadline has passed and a claim was omitted, litigation is another option and may run in parallel. Omission does not prevent pursuing the claim through the proper procedure. The action must then be brought against the court supervisor or administrator, depending on the proceedings. During restructuring, court proceedings may be initiated and conducted only by or against the administrator. If the creditor obtains a favourable final judgment before restructuring ends, the judge-commissioner amends the list accordingly.
Conclusion
Creditors may challenge erroneous inclusion or omission in arrangement and remedial proceedings by objecting to the judge-commissioner within two weeks of the list’s announcement. Formal requirements and evidential limitations must be observed. If unsuccessful, the first-instance order may be appealed within one week.
[1] This concerns only accelerated arrangement, arrangement and remedial proceedings.
[2] Act of 15 May 2015—Restructuring Law (consolidated text: Journal of Laws 2024, item 1428, as amended).
[3] The National Register of Debtors for applications filed after 1 December 2021, and Monitor Sądowy i Gospodarczy for those filed before that date.
[4] Code of Civil Procedure of 17 November 1964 (consolidated text: Journal of Laws 2024, item 1568, as amended).
