The effects of the expiry of a summons to pay in lieu of seizure

The effects of the expiry of a summons to pay in the form of a seizure of property are often misunderstood. Here's the lowdown.

Expiry of the effects of a summons to pay in lieu of seizure

A summons to pay in the form of an attachment order has extremely important effects on the debtor. It renders the property unavailable and restricts the distrainee's rights of enjoyment and administration (article L. 321-2 of the Code of Civil Enforcement Procedures).

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Given the importance of its effects, they are subject to a time limit that is referred to as the time limit for the effects of the order to lapse.

This follows from the provisions of article R. 321-20 of the Code of Civil Enforcement Procedures, which states that "A summons to pay in the form of a seizure ceases to have effect by operation of law if, within five years of its publication, no mention has been made in the margin of this publication of a judgement recording the sale of the seized property.

In the event of refusal to lodge the order or rejection of the publication formality, the five-year period does not begin to run until the application is regularised or the decision mentioned in article 26 of decree no. 55-22 of 4 January 1955 reforming land registration is taken.

Publication is recorded on the day the deed is filed with the land registry.

When the publication has been rejected, it is registered from the date on which the rejection is rectified (article 34 of the decree of 4 January 1955).

The effects of the expiry of a summons to pay in lieu of seizure

An enforcement judge who finds that the effects of a summons have lapsed cannot hear disputes relating to the substance of the right (Cass. 2e civ., 19 March 2015, no. 14-10.239, Bull. 2015, II, no. 70).

Lastly, a time-barred summons to pay (commandement de payer valant saisie) retains its effect of interrupting the limitation period until the proceedings are terminated, i.e. until the decision noting that its effects have lapsed (Cass. 2e civ., 1 March 2018, no. 17-11.238, Bull 2018, II, no. 42).