Appealing against a referral decision is a difficult and tricky procedure. The stakes are high, however, and the slightest misstep can have irreparable consequences. We will analyse how this procedure works and point out the mistakes to avoid.
The principle of indivisibility of the dispute
The principle of indivisibility of the dispute is described in Article 553 of the Code of Civil Procedure:
Where several parties are indivisible, an appeal by one party has effect in respect of the others even if they have not joined the proceedings; an appeal against one party is admissible only if all are joined in the proceedings.
The concept of indivisibility means that all parties who may be affected by the court's decision must be involved. In foreclosureall mortgage creditors can be affected. A change in the rights of one of them affects the amounts that the others can receive.
This is why the principle of indivisibility of the dispute is always applicable in property seizures. The Court of Cassation has confirmed this:
"But waitu that the Court of Appeal correctly held that in property seizure proceedings there is an indivisible link between all the creditors, so that pursuant to article 553 of the Code of Civil Procedure, an appeal by one of the parties to the proceedings before the execution judge, even if limited to contesting the claim of the pursuing creditor, must be brought against all the parties to the proceedings, failing which the appeal is inadmissible;". (Cass. 2e civ., 21 Feb. 2019, n° 17-31.350, Published in the bulletin).
This decision concerned creditors who had declared their claims in the proceedings. However, declaring a claim allows the declaring creditor to intervene officially. It therefore remained to be determined whether the principle of indivisibility also applied to creditors who had not declared their claims.
The Court of Cassation answered in the affirmative:
"Having regard to articles 553 of the Code of Civil Procedure and R. 322-6 of the Code of Civil Enforcement Procedures :
1. Pursuant to the first of these texts, in the event of indivisibility, an appeal by one of the parties to the proceedings before the enforcement judge must be lodged against all the parties to the proceedings, failing which the appeal is inadmissible.
2. Pursuant to the second of these texts, all registered creditors must be called to the property seizure proceedings, and the summons to appear at the orientation hearing is served on these creditors, making the property seizure proceedings indivisible.
3. In declaring the bank's appeal admissible, after noting that it had only summoned Mr and Mrs [T] and the company Crédit Logement, the judgment held that the other registered creditors had not declared their claims and had therefore forfeited their security for the distribution of the sale price, so that the principle of indivisibility should not be applied to them.
4. In so ruling, the Court of Appeal violated the aforementioned texts, whereas registered creditors are entitled to assert their rights to the distribution of the sale price, pursuant to Article L. 331-1 of the Code of Civil Enforcement Procedures, even if they have lost the benefit of their security for failure to declare their claim, the proceedings remain indivisible with respect to them, regardless of whether they have failed to declare their claim. (Cass. civ., 2nd, 2 Dec. 2021, no. 20-15.274).
This decision is not surprising, since creditors who have not declared their claims participate in the distribution of the price. The penalty for failing to declare a claim affects the way in which they are paid.
They will be downgraded to unsecured rank. This means that they will be sanctioned, but not excluded from the proceedings. As the proceedings continue in their presence, they must be treated as parties to the proceedings.
Caution! In some cases, the pursuing creditor may also act as a registered creditor. He will have to be joined in the case in his dual capacity as pursuing creditor and registered creditor.
Time limit for appeal
The time limit for appeal is 15 days from notification of the judgement.
The effects of the call
No interruptive effect
Article R. 121-21 of the Code of Civil Enforcement Procedures states that :
"The time limit for appeal and the appeal itself have no suspensive effect.
The judgments of the enforcement judge are always subject to provisional enforcement.
This means that the judgment ordering the compulsory sale must be enforced, even if an appeal is pending. The appellant will have to apply to the First President for a stay of provisional execution to prevent the sale from taking place.
Application for a stay of provisional execution
The appellant may apply to the First President for a stay of provisional execution. This procedure is governed by article R. 121-22 of the Code of Civil Enforcement Procedures.
The appellant must first prove that there are serious grounds for setting aside or altering the decision referred to the court. The application is made by way of a summons to appear before the First President of the Court of Appeal.
The author of a manifestly abusive claim may be ordered to pay a civil fine of up to €3,000.
Noteworthy fact, the suspension of provisional enforcement runs from the date of service of the summons.
Devolutive effect
Appeals are limited to disputes submitted to the enforcement judge.
Claims made for the first time on appeal must be declared inadmissible ex officio (Civ. 1e, 11 March 2010, no. 09-13.312; Civ. 1e, 20 October 2011, no. 10-25.787).
Nevertheless, the Court of Appeal may be seised of acts subsequent to the orientation hearing (Civ. 2e, 12 April 2012, no. 11-14.817).
Once the judgment has been handed down, the court must refer the case back to the enforcement judge. The latter alone has jurisdiction to continue the property seizure proceedings (Civ. 2e, 23 October 2008, no. 08-13.404, published in the Bulletin).
The procedure for appealing against a guidance decision
The fixed-day procedure
Firstly, article R. 322-19, paragraph 1, of the Code of Civil Enforcement Procedures provides that :
"An appeal against a referral order shall be lodged, heard and determined in accordance with the fixed date procedure, without the appellant having to rely on a peril in his application.
The Court of Cassation added that all judgements handed down at the orientation hearing are subject to the fixed day (Cass. civ., 2e, 25 Sept. 2014, no. 13-19.000, published in the Bulletin).
This will apply, in particular, to judgments before the law (articles 482 and 483 of the code of civil procedure).
An appeal against a referral decision under a different procedure constitutes a plea of inadmissibility. This is sanctioned by the inadmissibility of the appeal, which the judge must raise ex officio (Civ. 2e, 22 February 2012, no. 10-24.410; Civ. 2e, 28 June 2012, no. 11-20.143).
Application for authorisation to serve a writ of summons on a fixed date
The appellant must request authorisation to serve a writ of summons on a fixed date. This request will take the form of a petition, filed with the clerk's office of the First President.
On pain of inadmissibility of the appeal (Civ. 2e, 19 March 2015, no. 14-14.926), this request must be presented :
- Either before the appeal is lodged (articles 917 and 918 of the Code of Civil Procedure).
- Either within 8 days of the appeal being lodged (article 919 of the Code of Civil Procedure).
The request must contain the submissions on the merits. The Court of Cassation has recently stated that :
"It is a disproportionate sanction if an appeal against a referral judgment is inadmissible simply because the application sent to the first president does not contain the submissions on the merits. (Cass. 2e civ., 23 May 2024, no. 22-12.517, published in the bulletin)
The application must also include supporting documents and a copy of the decision under appeal.
Filing the application at the court registry
The paper application is submitted manually to the registry.
In fact, only procedural documents intended for the court of appeal must be delivered electronically (article 930-1 of the Code of Civil Procedure and Civ. 2e, 7 December 2017, no. 16-19.336).
Fixed date summons
The appellant must then summon the opposing party on the date indicated in the order of the first president.
This summons must include the following attachments:
- A copy of the application and the order approved by the court registry.
- A copy of the statement of appeal.
All on pain of inadmissibility of the appeal (Civ. 2e, 27 September 2018, no. 17-21.833).
Enrolling the assignment
The case will be referred to the court by delivering a copy of the summons to the clerk's office.
This submission must be made before the date set for the hearing. Failing this, the declaration of appeal will be declared null and void ex officio (article 922 of the Code of Civil Procedure).
The time taken by the court to process the appeal
The court will have to rule at least one month before the auction.
In practice, the case is often dealt with over a longer period. Failure by the court to meet this deadline is not penalised. In such cases, the creditor may ask for the auction to be postponed. This request will be necessary if the appellant has not asked for the provisional execution to be stopped.
In practice, the case may be postponed to a hearing after the auction date. In this case, the text provides that the pursuing creditor may ask the enforcement judge to postpone the date of the auction hearing. This request is made by way of pleadings.
The role of the lawyer
The procedure requires the involvement of a lawyer.
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