Have you obtained a debt but are struggling to recover it? Precautionary and enforcement measures are invaluable tools. But beware: these measures may lapse if certain procedural rules are not followed. It is crucial to understand the nullity in civil proceedings as a whole.
The devil is in the procedural details. A negligent creditor can see his efforts destroyed by missed deadlines.
Conservatory measures: effective but fragile
Protective measures enable you to preserve your rights while waiting to obtain a writ of execution. They immobilise the debtor's assets or claims without allowing them to be immediately allocated to the creditor.
However, these measures are subject to an essential condition: actively pursuing an enforcement order.
Lapse for failure to obtain a writ of execution
Article R.511-7 of the Code of Civil Enforcement Procedures is unambiguous: "The creditor must, within one month of enforcement of the measure, initiate proceedings or complete the formalities necessary to obtain an enforcement order.
If this one-month period is not respected, the protective measure lapses. This lapse occurs automatically, without any prior judicial intervention.
In a ruling dated 4 September 2014, the Court of Cassation confirmed that this lapse deprives the protective measure of all its effects, including its effect of interrupting the limitation period.
However, there is an exception if an application for an injunction to pay is rejected: the creditor then has an additional period of one month in which to refer the matter to the court hearing the case on the merits.
The trap of failing to report
Denunciation is another frequent source of lapse. Let's take the example of the precautionary seizure of debts.
Article R.523-3 of the French Code of Civil Enforcement Procedures requires that the debtor be notified of the seizure within eight days of it being served on the garnishee. If this deadline is not met, the seizure lapses.
This rule applies even when the seizure has proved unsuccessful, as the Cour de cassation ruled in a decision of 6 May 2004.
An additional difficulty arises in the case of measures carried out in the hands of a third party. In this case, article R.511-8 of the Code of Civil Enforcement Procedures requires the creditor to serve the third party with a copy of the documents attesting to his efforts to obtain an enforcement order. This service must be made within eight days of taking the necessary steps.
Case law has clarified that the purpose of this obligation is to inform the garnishee of its continuing obligation to keep the property that has been made unavailable.
Lapse of judicial sureties
Judicial securities (judicial mortgages, pledges of business assets, etc.) are also subject to a strict disclosure regime.
Article R.532-5 of the Code of Civil Enforcement Procedures requires the debtor to be informed by a court officer within eight days of the filing of the registration forms or the notification of the pledge.
Case law dated 21 December 2000 confirmed that this obligation is strictly applied. The Court of Cassation annulled a mortgage registration because the creditor had voluntarily served the document at an address where the debtor did not reside.
Provisional advertising must be confirmed by definitive advertising within two months. Failing this, the measure will lapse, in accordance with article R.533-6 of the same code.
The radical effect of lapse
If a precautionary or enforcement measure lapses, it becomes null and void. retroactive annulment. The lapsed deed is deemed never to have existed.
- The measure did not interrupt the statute of limitations
- It did not accrue interest on arrears
- It has no legal effect
In a ruling dated 23 November 2000, the Court of Cassation held that the lapse of a seizure prevents the garnishee from being ordered to pay for the causes of the seizure, even if he has not fulfilled his obligation to provide information.
This position may seem harsh. For some practitioners, it could encourage garnishees to make inaccurate or misleading declarations in order to cause a lapse that would exonerate them from liability.
Preventing lapses: the importance of a procedural strategy
To avoid these pitfalls, you need to be constantly vigilant. To document your approach:
- Draw up a precise timetable of deadlines to be met
- Check the accuracy of the addresses for meanings
- Keep all proof of the steps taken
- Anticipate deadlines by starting procedures well before they expire
A rigorous procedural timetable is your best protection against these sanctions.
If, in spite of this vigilance, a measure should lapse, there are remedies and strategies exist to challenge it.
Precautionary and enforcement measures are formidable tools when used correctly. Used incorrectly, they backfire on the creditor.
Your case deserves special attention. L'professional assistance to ensure the security of these procedures can make the difference between effective recovery and irremediable loss of rights. Do not hesitate to contact our firm to assess your situation and implement the strategy best suited to your case.
Sources
- Code des procédures civiles d'exécution, articles R.511-7, R.511-8, R.523-3, R.532-5 and R.533-6
- Court of Cassation, 2nd Civil Chamber, 4 September 2014, no. 13-11.887
- Court of Cassation, 2nd Civil Chamber, 6 May 2004, no. 02-12.484
- Court of Cassation, 2nd Civil Division, 21 December 2000, no. 99-13.218
- Court of Cassation, 2nd Civil Chamber, 23 November 2000, no. 98-22.938
- Pierre CALLÉ, "La caducité en droit judiciaire privé", Répertoire de procédure civile, Dalloz, July 2024
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