The property seizure procedure is a technical process in which each stage is governed by precise formalities. At the heart of the process, the referral ruling determines the fate of the property and crystallises the rights of the parties. However, it can happen that a third party, who is not involved in the initial proceedings, sees his or her own rights infringed by this decision. In such cases, the law provides an extraordinary remedy: third-party opposition. A ruling by the Court of Cassation on 16 January 2025 has clarified in a decisive way the procedures for appealing against a decision by the enforcement judge (JEX) ruling on such an opposition. This decision, far from being anecdotal, calls for increased vigilance on the part of practitioners and reshapes appeal strategies in an already complex area of litigation.
Context and specific features of third-party opposition to a referral judgment on a property seizure
To fully grasp the issues raised by this judgment, it is essential to re-contextualise the role of the guidance judgment within the foreclosure procedureThis is a key stage that determines the fate of the seized property. This procedure enables a creditor to sell a property belonging to his debtor in order to obtain payment of his debt. It is strictly regulated by the Code of Civil Enforcement Procedures to protect the interests of all parties involved.
The referral judgment: role and scope of the enforcement judge
The referral judgment is to rule on any disputes and to decide on the terms of the sale, whether amicable or forced. This decision, the linchpin of the procedure, is made by the enforcement judge (JEX)This specialised court verifies the validity of the seizure, settles any disputes raised by the debtor or other creditors, and sets the terms of the forthcoming sale. This specialised court verifies the validity of the seizure, settles any disputes raised by the debtor or other creditors, and sets the terms of the forthcoming sale. Its decision therefore has direct and major consequences not only for the debtor and the pursuing creditor, but also potentially for third parties.
Third-party opposition: an appeal open to third parties and conditions for admissibility
Third-party opposition is a means of appeal that allows a person who has not been a party to or represented in a judgment to challenge it if it prejudices his or her rights. Under article 583 of the Code of Civil Procedure, it is open to any person who has an interest in it. In the context of a property seizure, a third party may, for example, challenge an orientation judgment that recognises the seized debtor as the full owner of the property, even though the third party has a concurrent right to the property, such as a usufruct. For their claim to be admissible, third-party objectors must put forward their own arguments. He cannot simply repeat the arguments that the original parties could have put forward. The case that led to the judgment of 16 January 2025 is a perfect illustration of this situation: the liquidator of Majope filed a third-party claim, arguing that a waiver of usufruct by another company, recorded in the decision of orientation, had been made in fraud of the rights of the company that he represented in insolvency proceedings.
Initiation of the appeal against the decision ruling on the third-party objection
The first question put to the Cour de cassation was whether the JEX's decision declaring a third party opposition inadmissible could be appealed. In principle, article R. 311-7 of the Code of Civil Enforcement Procedures provides that judgments of the JEX may be appealed, unless otherwise provided. However, certain acts, such as the judgment recording an out-of-court sale, are not subject to this right of appeal. The High Court here unambiguously confirms that the right of appeal is open. It ruled that there is no legal provision that precludes an appeal against a judgment on the admissibility of a third party objection, even if that judgment also establishes an amicable sale. While the Court of Cassation here confirms the possibility of appealing against a ruling on third-party opposition, it subjects it to the same rigorous formalities as those laid down for appealing against a guidance decision himself.
Distinction from other actions for seizure of property
This solution makes a clear distinction. The appeal relates to the JEX's decision on the third party opposition, and not to the other provisions of the judgment, such as the declaration of the amicable sale, which is not subject to appeal. The Cour de cassation thus dissociates the different parts of the operative part of the judgment. The fact that the JEX has approved the sale cannot prevent the third party from appealing against the decision declaring the third party opposition inadmissible. This clarification is essential because it guarantees the third party access to the appeal court to defend its own rights, without being paralysed by the progress of the main proceedings between the creditor and the debtor.
The imperative of the fixed date procedure: formalities and penalties
The second major contribution of the ruling of 16 January 2025 concerns the terms and conditions of this appeal. The Court of Cassation ruled that an appeal against a decision ruling on the third-party objection must follow the fixed-day procedure set out in article R. 322-19 of the Code of Civil Enforcement Procedures for appeals against the referral judgment itself. Failure to comply with these formalities will result in the appeal being declared inadmissible, which the court may do of its own motion.
The devolutive effect of third-party proceedings and the admissibility of appeals
To justify this extension, the Court based itself on the very nature of third-party proceedings. Under article 582 of the Code of Civil Procedure, this remedy seeks to have the contested judgment set aside or retracted. It calls into question the points of the judgment that the third party criticises. Referral to the third-party proceedings judge therefore entails re-examining part of the initial dispute in fact and in law. Consequently, the decision rendered on the third-party objection is of the same nature as the referral judgment itself. Pursuant to article 592 of the same Code, the final decision on third-party proceedings is "subject to the same appeals as the decisions of the court seised of the case from which it emanates". The appeal must therefore logically follow the same procedural rules, in this case the accelerated fixed-day procedure.
Proportionality of penalties and the right to a fair trial
The requirement for a fixed date procedure is an onerous procedural constraint, non-compliance with which carries a radical penalty: inadmissibility. This rigour raises the question of its proportionality and the risk of excessive formalism. In a judgment of 23 May 2024, the Cour de cassation ruled that the inadmissibility of an appeal against a referral judgment on the sole ground that the initial application did not contain the submissions on the merits was disproportionate. It considered that, in the context of a fixed day imposed by law, this requirement was not fully justified and excessively infringed the right of access to a judge. The Court of Cassation's analysis is part of a wider body of case law aimed at striking a balance between the efficiency of proceedings and the protection of the right to a fair hearing. right to a fair trial of litigants. Although the judgment of 16 January 2025 does not directly address this issue, it is likely that practitioners will attempt to invoke this principle of proportionality to challenge inadmissibility based on minor procedural failings in this context.
Practical implications for parties and lawyers: appeal strategies and managing deadlines
The judgment of 16 January 2025 has a direct impact on the strategy of third-party objectors and their counsel. Confirmation of the obligation to use the fixed-date procedure calls for unfailing responsiveness and rigour. As soon as the JEX has given its decision, the lawyer must anticipate the need to prepare a petition to the First President of the Court of Appeal and to draw up a complete statement of appeal and summons, including all the submissions and arguments of fact and law, to be filed with the court registry within very tight deadlines, without going through a conventional pre-trial phase.
Interruption and suspension of time limits for appeals: the role of collective proceedings
The management of time limits is all the more strategic given that certain events can affect their course. Article 531 of the Code of Civil Procedure provides that the time limit for lodging an appeal is interrupted by a judgment opening collective proceedings (safeguard, reorganisation or compulsory liquidation) against the debtor. This rule, often taken from the Commercial Code, is a matter of public policy. In this case, a new period, of the same duration, starts running again from the time the judgment is served on the agent, the commissioner responsible for implementing the plan or the liquidator, who now has the status of liquidator to act on behalf of the company. This rule is fundamental, particularly where the third party is a creditor acting through its liquidator, as in the case under review. An interruption or suspension of the time limit can provide valuable time for preparing complex fixed-date proceedings. It is therefore essential to analyse precisely whether the conditions for such a modification of the time limit are met.
Stay of execution and cessation of provisional execution of JEX decisions: a strategic lever
The decisions of the enforcement judge are enforceable by operation of law, as an appeal does not have suspensive effect. However, article R. 121-22 of the Code of Civil Enforcement Procedures allows an application to be made to the First President of the Court of Appeal for a stay of enforcement if serious grounds for annulment or reversal, which will be discussed at a dedicated hearing, are demonstrated. This mechanism is distinct from a stay of provisional execution, particularly for decisions that impose a penalty payment. Recent case law has clarified that it is possible to apply for a stay of provisional enforcement only in respect of the heads of judgement liquidating a penalty payment, without calling into question the principal obligation. The choice between these different options (stay, stay of enforcement) depends on the nature of the contested decision and constitutes a strategic lever for the third party opponent who is seeking to paralyse the effects of the contested decision for the duration of the appeal proceedings.
The ruling of 16 January 2025 calls for increased vigilance on the part of practitioners. Given the complexity of these procedural rules, the assistance of an expert lawyer is crucial. Our law firm specialises in property seizures and our Legal Department analyse your situation to define the best recourse strategy and secure your rights. If you have any problems or questions, please do not hesitate to contact us using the form on our website.
Sources
- Code of civil procedure
- Code of civil enforcement procedures
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