The statement of claim is the act by which the registered creditor asserts his rights. When it receives a notice of termination of the foreclosure procedureThe creditor must declare the claim at the registry office.
This notification will enable the vendor to benefit from its mortgage ranking at the stage of price distribution. If they do not declare their claim or do so after the deadline, they will be penalised. It is therefore essential for registered creditors to declare their claims.
Here we look at how it works and how the debtor can contest it.
Statement of claim
The deadline, content and documents for the statement of claim depend on the date of publication of the mortgage registration.
The deadline for declaring a claim
The deadline for filing a claim is 2 months where the mortgage registration was published before the order. It is 1 month when published after summons to pay in lieu of seizure of property.
The content of the statement of claim
The claim is declared by a lawyer's deed filed with the auction registry. The statement of amounts due distinguishes between principal, costs and accrued interest. The rate of default interest is indicated.
Lastly, the declaration must be accompanied by :
- A copy of the enforcement order.
- The registration form bearing the publication form.
If the mortgage registration was published after the summons was issued, an additional document must be submitted:
- A mortgage statement (a building sheet) lifted on the date of registration.
The enforcement judge may consult the certificate of deposit to check that publication is in progress.
Cancellation of the statement of claim
The statement of claim is notified to the pursuing creditor and the debtor on the same day or on the first working day thereafter. The notice may be served by a lawyer, failing which it must be served by a bailiff.
In practice, it will always be notified by a lawyer to the pursuing creditor. The creditor must be represented by a lawyer, to whom the notice may be sent. The debtor, on the other hand, will be notified by a bailiff's deed if he has not set up a lawyer.
Penalties for failure to submit a claim within the time limit
A registered creditor who declares his claim after the deadline loses the benefit of his mortgage ranking. The penalty is the same if the claim is not declared at all.
He will take part in the distribution of the prize, but will be demoted to unsecured rank.
As regards distribution of the price, creditors are paid according to their rank. For example, for a property that has been auctioned for €200,000 :
- The first-ranking creditor has a registration for €100,000 and receives this amount.
- The second-ranking creditor has a registration for €50,000 and receives this amount.
- The third-ranking creditor has a registration for €30,000 and receives this amount.
- The fourth-ranking creditor has a registration for €30,000. He receives €20,000. The balance of €10,000 remains unpaid.
If third and fourth ranking creditors declare their claims after the deadline, their ranking will no longer be taken into account. They will be demoted to unsecured rank. The remaining €50,000 to be distributed will be allocated to them in equal shares, after being apportioned on the basis of the euro.
The subject is a technical one, and unfortunately there are few solutions to simplify it...
Application for relief from foreclosure
If a claim is declared after the deadline, it will be deemed to have been foreclosed. However, the enforcement judge may authorise the late creditor to declare his claim outside the time limit.
The creditor must apply to the court to have the foreclosure lifted. The creditor must prove that he is not responsible for the default. This application must be submitted no later than 15 days before the sale.
Challenging the statement of claim
Dispute procedures
The statement of claim will always be contested by a lawyer's submissions.
Time limit for complaints
The time limit within which it must be contested depends on the date on which it is filed with the registry.
Article R. 311-5 of the Code of Civil Enforcement Procedures states that :
"Unless otherwise stipulated, no challenge or incidental claim may be lodged after the orientation hearing provided for in article R. 322-15, unless it relates to procedural documents issued after that hearing, in which case the challenge or incidental claim must be lodged within fifteen days of notification of the document. In this case, the challenge or incidental claim must be lodged within fifteen days of notification of the document.
In other words, there is a simple timeline for foreclosing on property:
- All events occurring before or during the orientation hearing are contested at the orientation hearing.
- All events occurring after the orientation hearing must be contested within 15 days of the triggering event.
As a result :
- A statement of claim received before the case has been referred may be contested without any time limit. It simply has to be discussed at the referral hearing.
- A statement of claim received after the case has been referred must be contested within 15 days of notification.
Case law confirms this unambiguously:
"The enforcement judge is required to rule on disputes relating to the validity of the debtor's statement of claim raised during the orientation hearing. (Cass. opinion, 16 May 2008, no. 08-00.002, published in the Bulletin).
The benefits of a challenge
It is in the debtor's interest to contest the statement of claim if he finds that the creditor is claiming sums that are not due. This will always require the involvement of a lawyer.
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