Many securitisation bodies and other debt collection agencies are seizing debts in an attempt to obtain payment of interest, even though the statute of limitations has expired. While the creditor has ten years to recover the sums owed in respect of the capital borrowed from the date of the consumer's conviction, he must act more quickly in respect of the interest debt and has only two years in which to do so.
The interest debt at the end of the judgment
As we know, the sums due under a loan contract are by their very nature what are known as periodic debts.
In other words, the capital is repaid in as many monthly instalments as necessary, and to this first item is added a second item: the monthly interest (on the composition of the loan instalment and the interest that the lender derives from the loan, see our series of articles : What is the outstanding capital?)
However, when the borrower is ordered by a court to repay the loan, it is conceivable that the decision will freeze the time and amount of the debt.
This is true for the capital borrowed. Once it has been fixed by the judgment, it will not actually change.
However, the interest on the loan, which becomes interest on arrears, continues to accrue as long as the debt has not been repaid in full. So, even if the principle of interest is fixed by the judgment, the amount of interest is likely to increase as the repayment period increases.
The breakdowns provided by the distraining bailiffs suggest that this item of the claim can increase without time limit, but this is not the case.
The question then is whether it is prescribed in the same way as the judgment from which it arises or whether it follows a separate regime.
A debt subject to the two-year statute of limitations
The previous week, we saw that, since the 2008 reform, enforcement of a judgment was subject to a ten-year limitation period, with all the necessary nuances (see our article : The statute of limitations on enforcement of the judgment).
However, the Court of Cassation has chosen not to apply the limitation period of the writ of execution to sums not yet due at the date of the judgment. In its notice of 4 july 2016 (16-70.004), the Court began by stating that ". the time limit for enforcement of an enforcement order, provided for in article L. 111-4 of the Code of Civil Enforcement Procedures, does not apply to periodic claims arising under this enforcement order. ".
With regard to consumer loans, she went on to say that "we are not in the business of making consumer loans. periodic claims arising from a principal claim fixed by a writ of execution, in respect of the supply of goods or services by a trader to a consumer, should be considered to be subject to the limitation period set out in Article L. 218-2 of the Consumer Code, applicable having regard to the nature of the claim. "
So the creditor doesn't have ten years to claim default interest from you, and he doesn't have five years either, just two.
It is therefore totally abusive This is all the more serious because, in such cases, the creditor uses any sums paid by the borrower to repay the interest, whereas the borrower could repay the capital and reduce the debt more quickly.
In the example opposite, there is a line entitled "Prescription quinquennale" (five-year limitation period), which has clearly been deducted from the claim, since the total due has fallen from 7,174.04 euros to 3,243.45 euros, but clearly the bailiff or his principal has not applied the correct limitation period:
In short, if you see a line entitled "Quinquennial limitation period" in your seizure report, don't hesitate to come and see us. We regularly obtain damages for our customers who have been the victims of abuse.
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