Chapter 10 Lodgment of Claims

• Jurisdiction: United States

10. Lodgment of Claims

The provision of information for creditors would be meaningless without granting them rights to file their claims. In this respect, Article 45(1) EIR Recast provides that any creditor may lodge its claim in the main insolvency proceedings and in any secondary insolvency proceedings. This follows from the autonomous nature of secondary proceedings. Lodging and admission of claims in main insolvency proceedings does not lead to their ipso facto admission in secondary proceedings, and vice versa. Rules governing the lodging, verification and admission of claims differ from one jurisdiction to another (Article 7(2) (h) EIR Recast). However, provisions of national law limiting the right to lodge claims — e.g., to local creditors only — will contradict Article 45.

Filing claims in each insolvency proceeding may prove to be costly, particularly for micro and small enterprises. Therefore, Article 45(2) empowers insolvency practitioners in main and secondary insolvency proceedings to lodge claims they have received in other insolvency proceedings. More accurately, the insolvency practitioners shall lodge such claims, provided that the interests of creditors in proceedings for which they have been appointed are served by doing so and subject to the right of creditors to oppose such lodgment or to withdraw the lodgment of their claims where the applicable law so provides. This provision is of substantive character and aims to protect creditors who might have no means or awareness to file in other proceedings themselves. Regarding the need to consider the interests of creditors, it is commonly accepted that the insolvency practitioner must only decide whether the filing in other proceedings is in the general interest of creditors in his/her proceedings.

It is true that multiplicity of submissions in parallel insolvency proceedings may lead to double distribution or violation of the hotchpot rule (Article 23(2) EIR Recast). For this reason, insolvency practitioners need to effectively communicate with each other, particularly on any progress made in lodging or verifying claims, pursuant to Article 41(2) EIR Recast. Article 45(3) adds that the insolvency practitioner in the main or secondary insolvency proceedings shall be entitled to participate in other proceedings on the same basis as a creditor, in particular by attending creditors' meetings. This, however, does not create a power of representation. The insolvency practitioner attends creditors'...