The seizure of property is not a procedure like any other. Since the 2006 reform, the enforcement judge (JEX) plays a key role in this complex procedure, which results in the forced sale of a property.
The central role of the JEX in the proceedings
The jurisdiction of the JEX in property matters is set out in article L.213-6 of the Code de l'organisation judiciaire. It hears "the seizure of property proceedings, disputes arising in connection therewith and claims arising from or directly related to these proceedings".
The procedure begins with a summons to pay for the seizure of property, which must be published in the land registry. The creditor must then summon the debtor to appear before the JEX at the orientation hearing.
The orientation hearing is a key moment. The JEX verifies that the conditions for seizure have been met, in particular that the debtor's assets have been seized.existence of a writ of execution evidencing a claim that is due and payable.
At this hearing, the JEX may:
- Authorising an out-of-court sale at the request of the debtor
- Ordering a forced sale
- Ruling on disputes and incidental claims
Challenges and incidental claims
The seizure of property procedure requires a concentration of resources. Article R.311-5 of the Code of Civil Enforcement Procedures stipulates that, on pain of inadmissibility, no dispute or incidental claim may be lodged after the orientation hearing, unless it relates to subsequent acts.
This strict rule has been confirmed by case law. The Court of Cassation ruled inadmissible a request for a grace period made for the first time on appeal (Civ. 2e, 26 June 2014, no. 13-20.560).
There are also strict time limits for lodging complaints:
- Disputes must be lodged before the orientation hearing
- They must be submitted in writing via the filing of pleadings signed by a lawyer (Article R.311-6 of the Code of Civil Enforcement Procedures)
Specific decisions of the JEX
The referral judgement is a decisive step. It establishes the debt owed to the debtor and sets out the procedures for continuing the proceedings.
If the JEX authorises the out-of-court sale, it sets the price:
- Minimum sale amount
- The date of the return hearing
- Conditions for visiting the property
If the amicable sale fails or is not requested, the JEX orders the forced sale and sets the auction date.
As for the adjudication judgement, it has a hybrid nature. If it rules on a dispute, it constitutes a genuine judgment that may be appealed (Art. R.322-60 of the Code of Civil Enforcement Procedures). If it does not, it is simply an official record that cannot be appealed.
The Court of Cassation has ruled that an auction judgement that does not rule on any dispute is not res judicata (Civ. 2e, 11 July 2013, no. 12-13.737).
Real estate appeals
L'appeal against seizure of property has some special features:
- It must be lodged within 15 days of notification of the judgment.
- For the referral judgement, the procedure is on a fixed date without the need to provide proof of peril (Art. R.322-19 of the Code of Civil Enforcement Procedures).
In particular, certain judgments are not subject to appeal:
- The judgement recording the out-of-court sale (Art. R.322-25)
- An adjudication judgment that does not rule on a dispute
- Decision rejecting a request for subrogation from a registered creditor (Art. R.311-9)
The devolutive effect of the appeal is also limited by article R.311-5. The Court of Cassation strictly applies this provision, rendering inadmissible new arguments raised on appeal.
How to secure your foreclosure procedure
The foreclosure procedure is fraught with pitfalls. Critical points to watch out for:
- Compliance with the formal requirements of a distraint order
- Careful preparation of challenges before the orientation hearing
- Knowledge of the JEX's powers at each stage
A late challenge will be inadmissible. An appeal that has not been properly lodged will be rejected. Advance preparation with a specialist lawyer is essential.
Our firm regularly intervenes in these proceedings, both for pursuing creditors and for seized debtors. Contact us for a personalised analysis of your situation.
Sources
- Code of Judicial Organisation, article L.213-6
- Code of civil enforcement procedures, articles R.311-5, R.311-6, R.311-7, R.322-19, R.322-25, R.322-60
- Court of Cassation, 2nd Civil Chamber, 26 June 2014, no. 13-20.560
- Court of Cassation, 2nd Civil Chamber, 11 July 2013, no. 12-13.737
- Court of Cassation, 2nd Civil Chamber, 24 June 2010, no. 08-19.974
- Order no. 2006-461 of 21 April 2006 reforming the seizure of property
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