Publication of the summons to pay in the event of seizure

The summons to pay must be published in the property register within 2 months of being served. It is then carried out by sending various documents to the land registry.

The publication deadline

Article R. 321-6 of the Code of Civil Enforcement Procedures :

"The summons to pay is published in the property register within two months of being served.

The aforementioned 2-month time limit applies on pain of the order lapsing.

There is nothing to prevent the lawyer from publishing the summons before the expiry of the notice period of 8 days (debtor) or 1 month (mortgage guarantor), although this is not recommended.

This 2-month period is increased when the publication formality is rejected by the land registry, by the number of days elapsed between the filing of the summons for publication and the regularisation of the rejection (where possible), in accordance with the second paragraph of article R. 321-7 of the Code of Civil Enforcement Procedures:

"Where performance of the publication formality has been delayed due to a rejection notified by the land registry service, the two-month period provided for in article R. 321-6 is increased by the number of days elapsed between the filing of the order with this service and performance of the formality. The date of filing is recorded in the register provided for in article 2453 of the Civil Code.

In other words, rejection of publication suspends the 2-month period until the matter is rectified.

Example: the publication is rejected due to a discrepancy between the statements in the summons and those in the property register concerning the name of the debtor (MCKEY according to one, M'CKEY according to the other). The pursuing creditor regularises the rejection within 15 days. The 2-month publication period is suspended for 15 days and extended to 2 months and 15 days.

Publication details

Publication of the summons to pay in the event of seizure

The lawyer shall send to the Land Registry :

• The original copy of the summons to pay for the seizure of the property,
• A copy reproduced on the CERFA n° 3265-SD publication form certified by the lawyer and collated by the bailiff,
• A request for a CERFA no. 3233-SD building form,
• Payment of fees and taxes by cheque made payable to Treasury.

In practice, the lawyer generally leaves it to the bailiff to reproduce the summons on the CERFA no. 3265-SD publication slip. It is the bailiff's responsibility to affix the certificate of conformity at the foot of the slip (article 79 of decree no. 55-1350 of 14 October 1955), so it is naturally up to him to draw it up.

The collation form allows the bailiff to certify that the two copies of the deed (the original and the copy on the publication slip) are in conformity with each other.

The certification form enables the lawyer to certify that the identity of the parties has been duly established on the basis of a birth certificate or a Kbis extract less than 6 months old (articles 5 and 6 of decree no. 55-22 of 4 January 1955).

Publication is subject to the following price scale:

• 15 for publication of the order,
• 12 per lot for enquiries,
• 2 € postage and packing.

Example: the publication of a summons to pay for the seizure of a flat made up of 3 lots (a flat, a cellar and a parking space) will cost 15 + 12 + 12 + 12 + 2 = €53.

Within 10-15 days, the lawyer will receive the return of his request for a building form, on which the publication references of the deed will appear, and then at a later date the original copy of the summons with the publication slip (a sticker).

Concurrent publication of several summonses to pay for the seizure of property

Article R. 321-8 of the Code of Civil Enforcement Procedures :

"If the publication of several orders for seizure of the same property is required simultaneously, only the order which mentions the enforcement title bearing the earliest date shall be published. Where the titles bear the same date, only the oldest summons is published; if the summonses are of the same date, only the one with the highest principal claim is published.

In fact, when the publication of several summonses to pay is required simultaneously for the seizure of the same property, only one is published:

• Only the summons with the oldest enforcement order is published,
• Where titles bear the same date, only the oldest order is published.

The refusal to publish is mentioned by the land registry in the margin of the published summons, as well as in the margin or following the refused summons (article R. 321-10 of the Code of Civil Enforcement Procedures).

Presence of a summons to pay in the form of a seizure of real estate in the real estate file

Article R. 321-9 of the Code of Civil Enforcement Procedures :

"Where a summons to pay has already been published, there is no need to publish a new summons relating to the same property.
However, if the new summons presented to the Land Registry includes more property than the previous summons, it is published for the property not included in the previous summons. The new pursuing creditor is required to report the published summons to the previous creditor, who will pursue both proceedings if they are at the same stage; if not, the latter suspends its own pursuit and follows the new proceedings until they are at the same stage.
If the previous creditor fails to pursue the new seizure, the new creditor may request subrogation under the conditions set out in article R. 311-9.

The second commandment will be published alongside the first. The publication sticker will then bear the words RESA for refusal to seize.

However, if the new summons includes property not included in the previous summons, it is published for the property not included in the previous summons. The author of the new summons must report it to the previous creditor who :

• If the procedures are in the same state, continue them,
• If the procedures are not in the same state, it will suspend its procedure and follow the new one until they are in the same state.

The text does not set out the practical arrangements for the previous creditor to continue the proceedings initiated by the second summons. It is conceivable that the creditor will have to issue a new summons in the second set of proceedings, in order to request that the cases be joined at the orientation hearing.

In practice, either the previous summons is less than 5 years old and the proceedings may still be in progress, in which case you should contact the lawyer for the pursuing creditor and the auction registry to advise them; or the summons is more than 5 years old and has expired. In the latter case, there are several solutions:

• Either the previous proceedings ended with a judgment ordering the cancellation of the summons, which neither the pursuing creditor nor the distrainee debtor took the trouble to publish: ask the lawyer who was in charge of the proceedings to send you the cancellation judgment,

• Or it has not been initiated, for example if an amicable agreement has been reached after the summons has been published but before the conditions of sale have been filed with the clerk of the auction registry: file a writ of cancellation.