Defence Strategies Against Foreclosure in France (saisie immobilière)

You are reading a practical analysis of the methods available to legal practitioners when organising their client’s defence in French foreclosure proceedings (saisie immobilière). This text is drawn from our continuing education materials, structured not as an exhaustive catalogue of arguments, but as a chronological guide enabling the practitioner to examine each stage of the procedure while identifying the angles of attack available to counsel.

Revision log

20/05/2024: initial publication of the materials.

Acting for the defence in foreclosure proceedings requires us, first, to interrogate the very notion of defence. It is possible to act not only for the debtor under seizure (débiteur saisi) – as one might initially assume – but also for other parties to the proceedings who may oppose the creditor’s claims: principally the tenant and third parties.

In practical terms, since the organisation of the client’s defence follows the chronology of the procedure, these materials follow the same structure, progressing from case preparation through to the sale and its consequences.

The content is partly drawn from a training course dedicated to foreclosure procedure, condensed to address the specific concerns of counsel acting for the defence.

Finally, the distinctive features of the procedure require that we set out, by way of preliminary, the general rules of civil enforcement proceedings on the one hand, and the specific rules of foreclosure procedure on the other, insofar as they concern defence counsel.

I. General rules of foreclosure procedure

A. The role of the enforcement judge (juge de l’exécution)

1. Jurisdiction of the enforcement judge

The subject-matter jurisdiction of the enforcement judge derives from the third paragraph of Article L. 213-6 of the Code of Judicial Organisation (Code de l’organisation judiciaire): “The enforcement judge has jurisdiction, subject to the same reservation, over foreclosure proceedings, disputes arising in connection therewith, and claims arising from those proceedings or directly related thereto, even where they concern the merits of the right, as well as the distribution procedure that follows.”

The functions of enforcement judge are exercised by the president of the judicial court (tribunal judiciaire), subject to delegation (Article L. 213-5 of the Code of Judicial Organisation).

The phrase “disputes arising in connection therewith and claims arising from those proceedings or directly related thereto, even where they concern the merits of the right” enables the enforcement judge, in particular, to resolve difficulties concerning the enforcement of notarial instruments (titres notaries). The enforcement of an authenticated deed without prior referral to a judge on the merits means that all challenges to its validity remain admissible before the enforcement judge.

The question submitted to the enforcement judge must nevertheless arise in connection with the enforcement proceedings; failing which, it falls within the jurisdiction of the judge on the merits. It has accordingly been held that a claim for damages against the creditor does not constitute a challenge to the foreclosure and therefore does not fall within the enforcement judge’s jurisdiction (Cass. civ., 2nd, 25 Sept. 2014, No. 13-20.561, published in the Bulletin; Cass. civ., 2nd, 22 June 2017, No. 15-24.385; Cass. 2nd civ., 18 May 2022, No. 20-22.111).

The enforcement judge has jurisdiction from the moment the payment order constituting seizure (commandement de payer valant saisie immobilière) is served – well before the case is enrolled, which occurs when the summons to the orientation hearing is filed with the auction clerk’s office.

Article R. 321-1, first paragraph, of the Code of Civil Enforcement Proceedings (Code des procédures civiles d’execution) provides: “Pursuant to Article L. 321-1, enforcement proceedings are initiated by service on the debtor or the third-party holder of a payment order constituting seizure, at the request of the pursuing creditor.”

2. Powers of the enforcement judge

Article L. 213-6 of the Code of Judicial Organisation:

“The enforcement judge has exclusive jurisdiction over difficulties relating to enforceable instruments and disputes arising in connection with enforcement, even where they concern the merits of the right, unless they fall outside the jurisdiction of the ordinary courts.

Under the same conditions, he authorises protective measures and has jurisdiction over disputes relating to their implementation.

The enforcement judge has jurisdiction, subject to the same reservation, over foreclosure proceedings, disputes arising in connection therewith, and claims arising from those proceedings or directly related thereto, even where they concern the merits of the right, as well as the distribution procedure that follows.

He has jurisdiction, subject to the same reservation, over claims for damages based on the harmful execution or non-execution of enforcement measures or protective measures.

The enforcement judge also exercises the particular powers conferred upon him by the Code of Civil Enforcement Proceedings.”

In foreclosure matters, the enforcement judge has jurisdiction over:

Disputes arising in connection with enforcement, even where they concern the merits of the right;
Claims arising from foreclosure proceedings or directly related thereto, even where they concern the merits of the right.

In practice, two scenarios arise:

Where the enforceable instrument is a court judgment that has acquired the force of res judicata, the authority of that judgment will limit the judge’s intervention to a possible interpretation of its operative part (dispositif) (Civ. 2nd, 22 March 2012, No. 11-13.915);
Where the enforceable instrument is an authenticated deed (acte authentique), the judge may examine challenges concerning the merits of the right, provided they arise from or directly relate to the foreclosure proceedings – for example, a failure to comply with formalities in drafting the sale deed by the notary is unrelated to the conditions of enforcement and falls outside the enforcement judge’s purview (Civ. 2nd, 8 January 2015, No. 13-21.044).

3. Obligations of the enforcement judge

Article R. 322-15, first paragraph, of the Code of Civil Enforcement Proceedings:

“At the orientation hearing, the enforcement judge, after hearing the parties present or represented, verifies that the conditions of Articles L. 311-2, L. 311-4 and L. 311-6 are satisfied, rules on any challenges and incidental applications, and determines how the procedure shall continue, either by authorising a private sale at the debtor’s request or by ordering a forced sale.”

Article L. 311-2 of the Code of Civil Enforcement Proceedings:

“Any creditor holding an enforceable instrument evidencing a liquidated and due debt may proceed with a foreclosure under the conditions set out in this Book and by the provisions of Book I that are not inconsistent therewith.”

Article L. 311-4 of the Code of Civil Enforcement Proceedings:

“Where proceedings are initiated on the basis of a judgment that is provisionally enforceable, the forced sale may not take place until a final judgment has acquired the force of res judicata.

However, during the period allowed for opposition, no proceedings may be initiated on the basis of a judgment rendered by default.”

Article L. 311-6 of the Code of Civil Enforcement Proceedings:

“Unless otherwise provided by statute, a foreclosure may be levied on all rights in rem attaching to immovable property, including accessories deemed immovable, that are capable of being transferred.”

The enforcement judge verifies that the conditions of Articles L. 311-2, L. 311-4 and L. 311-6 are met, namely:

That the creditor holds an enforceable instrument evidencing a liquidated and due debt;
Where the enforceable instrument is a court judgment, that it is final and has acquired the force of res judicata;
That the seizure relates to rights in rem (droits reels).

Accordingly, the pursuing creditor’s counsel must append to the file all documents enabling the judge to fulfil his duty, including:

The enforceable instrument;
Where the instrument is a judgment, a certificate of non-appeal (certificat de non-appel);
The mortgage registration certificate(s) (bordereau(x) d’inscription hypothecaire)…

Conversely, the debtor’s counsel may challenge the failure to produce these documents – all the more so since the enforcement judge often does not spontaneously request evidence that the creditor holds a liquidated and due debt, such as proof of acceleration of the loan (decheance du terme).

The Cour de cassation holds that the enforcement judge sitting in foreclosure matters must raise of his own motion both procedural bars (fins de non-recevoir) and public policy provisions (Com., 13 September 2011, No. 10-17.659).

However, the enforcement judge is not required to verify the debt or fix its amount when an admissibility decision by the over-indebtedness commission (commission de surendettement) intervenes at the stage of case orientation (Cass. advisory opinion, 12 March 2020, No. 19-70.022, published in the Bulletin).

B. The proceedings as an “instance”

1. The concept of instance

Traditionally, enforcement proceedings – which oppose a creditor to a debtor rather than a claimant to a defendant – are not classified as judicial proceedings (instance) and therefore cannot be struck by limitation through lapse of proceedings (peremption d’instance) (Cass. civ., 2nd, 24 March 2005, No. 03-16.312, published in the Bulletin).

The terminology used by the Cour de cassation is nonetheless confusing, since it regularly employs the expression “instance” in foreclosure matters. For example, regarding interruption of limitation: “And whereas, having recalled that under Article 2242 of the Civil Code the interruption of limitation resulting from legal proceedings produces its effects until the extinction of the proceedings, the Court of Appeal, which correctly held that the proceedings initiated by the referral to the enforcement judge that gave rise to the orientation judgment of 17 December 2009 were only extinguished by the order approving the distribution plan of the sale proceeds of 31 October 2012, correctly deduced therefrom that the earnings-attachment proceedings commenced on 24 October 2013 were admissible;” (Cass. civ., 2nd, 6 Sept. 2018, No. 17-21.337, published in the Bulletin).

Furthermore, under the former legislation, it had been held that procedural incidents could give rise to limitation through lapse (Cass. civ., 2nd, 6 Feb. 1991, No. 89-21.371, published in the Bulletin).

2. Discontinuance (desistement d’instance)

The creditor’s discontinuance divests the enforcement judge of jurisdiction to decide disputes arising in connection with the foreclosure proceedings and to rule on counterclaims arising from or relating to those proceedings (Cass. civ., 2nd, 11 Jan. 2018, No. 16-22.829, published in the Bulletin).

In that case, the debtor had accepted the bank’s discontinuance but maintained his counterclaims, arguing that discontinuance was only effective if accepted by the defendant (Article 395 of the Code of Civil Procedure).

The Cour de cassation did not follow this reasoning, establishing the rule that the disappearance of the enforcement measure resulting from the claimant’s discontinuance entails the judge’s lack of jurisdiction over counterclaims.

We recall, accordingly, Article 2243 of the Civil Code, concerning interruption of limitation: “Interruption is deemed not to have occurred if the claimant discontinues his claim, allows the proceedings to lapse, or if his claim is finally dismissed.”

II. The procedure up to the orientation hearing

Defence counsel for the debtor has no opportunity to intervene before the orientation hearing, except under Article R. 322-20 of the Code of Civil Enforcement Proceedings, which provides: “An application for the private sale of the property may be made and decided before service of the summons to appear at the orientation hearing, provided the debtor joins the registered creditors as parties.

The decision granting the application suspends the enforcement proceedings, with the exception of the time allowed for registered creditors to declare their claims.”

The debtor may apply for a private sale without awaiting the judge’s authorisation, provided registered creditors are joined as parties, in the form of a summons and notification outside the orientation hearing.

The judgment authorising the private sale will comply with Article R. 322-21 of the Code of Civil Enforcement Proceedings. Article R. 322-20 simply provides that the judge may rule before the orientation hearing. It has no bearing on the content of the judgment, which is governed by Article R. 322-21:

“The enforcement judge who authorises the private sale sets the price below which the property may not be sold, having regard to the economic conditions of the market, and, where applicable, particular conditions of sale.

The judge assesses the pursuit costs at the request of the pursuing creditor.

He sets the date on which the case will be recalled at a hearing, within a period not exceeding four months.

At that hearing, the judge may grant an additional period only if the applicant produces a written commitment to purchase and only for the purpose of preparing and completing the notarial deed. That period may not exceed three months.”

The procedure is suspended from the date of the judgment rendered by the enforcement judge following the debtor’s application.

The legislation provides a specific mechanism to address the lapse (peremption) of the payment order constituting seizure, at Article R. 321-22 of the Code of Civil Enforcement Proceedings, concerning the lapse period: “This period is suspended or extended, as the case may be, by an entry in the margin of the published copy of the payment order of a court decision ordering the suspension of enforcement proceedings, the postponement of the sale, the extension of the effects of the payment order, or a decision ordering the re-opening of bidding.”

Thus, publication of the judgment authorising the private sale will suspend the lapse period until completion of the sale or resumption of proceedings.

However, the legislation provides no automatic mechanism to address the lapse (caducite) of the payment order where, by reason of the debtor’s summons, the procedure is suspended and the creditor fails to carry out one of the numerous steps required on pain of lapse.

The pursuing creditor must therefore, if necessary, apply to the enforcement judge for relief from lapse, pursuant to Article R. 311-11 of the Code of Civil Enforcement Proceedings: “The time limits prescribed by Articles R. 321-1, R. 321-6, R. 322-6, R. 322-10 and R. 322-31, as well as the two- and three-month periods prescribed by Article R. 322-4, are required on pain of lapse of the payment order constituting seizure.

Any interested party may apply to the enforcement judge to declare the lapse and order, where necessary, that mention thereof be made in the margin of the published copy of the payment order at the land registry.

The application shall not be granted if the pursuing creditor demonstrates a legitimate reason.

The declaration of lapse may also be set aside if the pursuing creditor notifies the clerk of the enforcement judge, within fifteen days of its pronouncement, of the legitimate reason that he was unable to invoke in due time.”

In practice, this procedure is rarely invoked by the debtor. It is nevertheless of interest in two respects:

It accelerates the sale where no viable defence exists, thereby limiting default interest;
It considerably disrupts the legibility of time limits and increases the risk of a computational error by the pursuing creditor.

III. The orientation hearing

The defence arguments that may be raised can be classified into several categories: enforcement, procedure, the creditor, the property, the debtor, and the sale. We shall examine each in turn.

A proper understanding of their scope and utility is inseparable from a sound understanding of how the procedure works; both subjects will therefore be addressed together.

A. Enforcement

Article L. 311-2 of the Code of Civil Enforcement Proceedings:

1. The enforceable instrument (titre exécutoire)

Article L. 311-4 of the Code of Civil Enforcement Proceedings:

“Where proceedings are initiated on the basis of a judgment that is provisionally enforceable, the forced sale may not take place until a final judgment has acquired the force of res judicata.

However, during the period allowed for opposition, no proceedings may be initiated on the basis of a judgment rendered by default.”

Article L. 111-3 of the Code of Civil Enforcement Proceedings:

“Only the following constitute enforceable instruments:

1. Decisions of the ordinary or administrative courts when they have enforceable force, as well as agreements to which those courts have conferred enforceable force;

2. Foreign instruments and judgments, as well as arbitral awards, declared enforceable by a decision not subject to an appeal with suspensive effect, without prejudice to applicable European Union law;

3. Extracts from conciliation records signed by the judge and the parties;

4. Notarial deeds bearing the enforcement formula;

4 bis. Agreements by which spouses mutually consent to their divorce by private deed countersigned by lawyers, deposited among the minutes of a notary under the conditions of Article 229-1 of the Civil Code;

5. The instrument issued by the enforcement officer (huissier de justice) in the event of non-payment of a cheque or in the event of agreement between creditor and debtor under Article L. 125-1;

6. Instruments issued by legal persons governed by public law so designated by statute, or decisions to which the law attaches the effects of a judgment.”

a) The interim order (ordonnance de refere)

Article L. 311-4 of the Code of Civil Enforcement Proceedings provides that proceedings may be initiated on the basis of a provisionally enforceable decision, but that the forced sale may not take place until a final judgment has acquired the force of res judicata.

Accordingly, an interim order permits the initiation of proceedings on a protective basis but does not allow the judge to order a forced sale. A private sale, however, may be ordered if requested by the debtor.

b) The judgment or appellate decision

Again by virtue of Article L. 311-4, a provisionally enforceable first-instance judgment permits the initiation of proceedings but will not allow the judge to order a forced sale.

For the forced sale to be ordered, it is necessary to exhaust all avenues of appeal so that the decision acquires the force of res judicata.

The Cour de cassation recently indicated that under Article 503, first paragraph, of the Code of Civil Procedure, enforcement of the condemnations resulting from a judgment confirmed on appeal is conditional upon service of both the appellate decision and the first-instance judgment (Cass. 2nd civ., 30 June 2022, No. 21-10.229, published in the Bulletin).

No proceedings may be initiated on the basis of a default judgment until the period allowed for opposition has expired.

c) The authenticated deed (acte authentique)

Article L. 311-2 provides that the enforceable instrument must evidence a liquidated and due debt. The liquidated and due character of the debt raises no difficulty for court judgments ordering the debtor to pay a sum of money.

Where the instrument is an authenticated deed, however, the quantification of the debt is carried out by the pursuing creditor, and its maturity derives either from contractual or statutory provisions.

Example: a bank pursuing recovery of a mortgage loan liquidates the debt at the point of acceleration (decheance du terme), which also renders the outstanding capital due. Any faults committed by the bank may validly be submitted to the enforcement judge, since we are dealing with an enforceable instrument and with difficulties concerning its enforcement that have not been resolved by a judgment on the merits.

Defence counsel will therefore focus on whether acceleration was validly pronounced, having regard to the case law on pre-litigation formal notice (mise en demeure precontentieuse) (Civ. 1st, 3 June 2015, No. 14-15.655) and acceleration of the loan (Civ. 1st, 15 June 2016, No. 15-16.173).

2. The liquidated debt (creance liquide)

Article L. 111-6 of the Code of Civil Enforcement Proceedings provides: “A debt is liquidated when it is expressed in money or when the instrument contains all the elements enabling its quantification.”

Where the pursuing creditor’s debt is challenged, the enforcement judge is obliged to determine its amount: “when the amount of the pursuing creditor’s debt is challenged, the judge is bound to determine it and, to that end, to settle the accounts between the parties if necessary, and may not decline to do so on the ground of insufficient evidence.” (Cass. 2nd civ., 15 Apr. 2021, No. 20-13.953).

This decision is particularly noteworthy for its legal basis: it cites Article 4 of the Civil Code, concerning denial of justice. The Cour de cassation thus holds that the enforcement judge must determine the amount of the contested debt, on pain of denial of justice.

3. The due debt (creance exigible)

The question of whether the debt is due raises no difficulty where the enforceable instrument is a final judgment with the force of res judicata. Where the instrument is an authenticated deed evidencing a bank loan, the bank must pronounce acceleration in order to render the outstanding capital due.

By this act, the bank both fixes the amount of its debt and renders it due.

The Cour de cassation has held, however, that a declaration of indebtedness (declaration de creance) filed with the over-indebtedness commission secretariat – which incorporates debts both due and to fall due – does not constitute acceleration. The debtor argued the contrary, on the ground that the declaration incorporated the outstanding capital: “Under Articles L. 330-1, L. 331-3 and R. 332-1 of the Consumer Code […]

5. It results from these provisions that the over-indebtedness commission draws up the statement of debts due and to fall due of the debtor after having, where appropriate, published a call for creditors, who must then declare their debts within the prescribed time. Such a declaration does not bring about the acceleration of loans taken out by the debtor.

6. In holding that the bank’s debt was time-barred and ordering the discharge of the foreclosure, the judgment holds that the letter entitled ‘acceleration’ of 8 February 2017 amounts in reality only to a formal notice, since the entirety of the sums due under the loan had been claimed by the bank in its 2013 declaration to the over-indebtedness commission.

7. In so ruling, whereas such a declaration had not brought about the acceleration of the loan, the Court of Appeal violated the above-cited provisions.” (Cass. 1st civ., 23 Nov. 2022, No. 20-20.535).

B. Procedure

1. Nullities (nullites)

Article R. 321-3 of the Code of Civil Enforcement Proceedings sets out the particulars that must appear in the payment order constituting seizure:

“In addition to the particulars prescribed for enforcement officer’s instruments, the payment order constituting seizure shall contain:

1. The constitution of counsel for the pursuing creditor, which constitutes election of domicile;

2. The date and nature of the enforceable instrument by virtue of which the order is issued;

3. A breakdown of the sums claimed in principal, costs and accrued interest, together with the rate of default interest;

4. A warning that the debtor must pay these sums within eight days, failing which the procedure for the sale of the property will continue, and that to this end the debtor will be summoned to appear at a hearing before the enforcement judge to determine the procedure;

5. A description of each property or right subject to seizure, as required by the rules on land registration;

6. A statement that the order constitutes seizure of the property and that the property is unavailable as against the debtor from service of the instrument and as against third parties from publication thereof at the land registry;

7. A statement that the order constitutes seizure of the fruits and that the debtor is their sequestrator;

8. A statement that the debtor retains the possibility of finding a purchaser for the seized property in order to effect a private sale, or of giving a mandate to that end, and that such a sale may nevertheless only be concluded with the authorisation of the enforcement judge;

9. A summons, where the property is subject to a lease, to provide the enforcement officer with the name, first name and address of the tenant, or, in the case of a legal person, its name and registered office;

10. A statement that an enforcement officer may enter the premises to draw up a descriptive report of the property;

11. An indication of the enforcement judge having territorial jurisdiction over the foreclosure proceedings and related challenges and incidental applications;

12. A statement that the debtor who applies in advance may benefit from legal aid for the foreclosure proceedings if he meets the means conditions prescribed by Law No. 91-647 of 10 July 1991 on legal aid and Decree No. 91-1266 of 19 December 1991 implementing that law;

13. A statement, if the debtor is a natural person, that if he considers himself to be over-indebted, he may refer the matter to the over-indebtedness commission established by Article L. 712-1 of the Consumer Code.

If the seizing creditor acts by virtue of a transmission, on whatever ground, of the debt contained in the enforceable instrument founding the proceedings, the payment order shall reference the instrument of transmission, unless the debtor has been duly notified thereof in advance.

Where the payment order constituting seizure is served on a person who has granted a mortgage over one of their properties to guarantee the debt of a third party, the notice period prescribed in paragraph 4 is extended to one month.

The particulars prescribed by this article are required on pain of nullity. However, nullity is not incurred merely because the sums claimed exceed those owed to the creditor.”

Nullity requires the demonstration of prejudice (grief) (see e.g. Civ. 2nd, 30 April 2009, No. 08-12.105).

However, an error in the breakdown of sums due appearing in the payment order constituting seizure is never a ground for nullity.

2. Lapse (caducite)

a) Grounds for lapse

Article R. 311-11 of the Code of Civil Enforcement Proceedings:

“The time limits prescribed by Articles R. 321-1, R. 321-6, R. 322-6, R. 322-10 and R. 322-31, as well as the two- and three-month periods prescribed by Article R. 322-4, are required on pain of lapse of the payment order constituting seizure.

The application shall not be granted if the pursuing creditor demonstrates a legitimate reason.

The time limits prescribed on pain of lapse are:

Notification of the payment order to the spouse, by the first working day following service on the debtor, where the property belongs solely to the debtor but constitutes the family residence (R. 321-1);
Publication of the payment order at the land registry within two months of service (R. 321-6);
Service of the summons to the orientation hearing within two months of publication of the payment order (R. 322-4);
Notification of the payment order to registered creditors and their summons to the orientation hearing within five working days following service of the summons to the orientation hearing (R. 322-6);
Filing of the conditions of sale (cahier des conditions de vente) with the court registry within five working days following service of the summons to the orientation hearing (R. 322-10);
Fixing the date of the orientation hearing within a maximum of three months from service of the summons to the orientation hearing (R. 322-4), it being noted that the minimum one-month period below which the statute prohibits fixing the hearing date is not prescribed on pain of lapse (the procedure may be shortened but not extended);
Publication of the forced sale notice within the period between two months and one month before the auction hearing (R. 322-31);
Failure to call for the sale on the day of the auction hearing (R. 322-27).

b) Effects of lapse

Lapse retroactively deprives the payment order of effect and extinguishes the proceedings (Civ. 2nd, 4 September 2014, No. 13-11.887).

Moreover, lapse “affects all acts of the seizure proceedings” initiated by the payment order. All subsequent procedural acts are accordingly annihilated (Civ. 2nd, 19 February 2015, No. 13-28.445). In that case, the annihilation of subsequent acts deprived the summons to the orientation hearing of its limitation-interrupting effect.

3. Limitation through lapse (peremption)

Article R. 321-20 of the Code of Civil Enforcement Proceedings:

“The payment order constituting seizure ceases by operation of law to produce effect if, within five years of its publication, no mention has been made in the margin of that publication of a judgment recording the sale of the seized property.

In the event of rejection of the filing of the payment order or refusal of the publication formality, the five-year period does not begin to run until the regularisation of the application or the decision referred to in Article 26 of Decree No. 55-22 of 4 January 1955 on land registration reform.”

Publication is recorded on the date the instrument is filed with the land registry service.

Where publication has been rejected, publication is recorded from the date of regularisation of the rejection (Article 34 of the Decree of 4 January 1955).

Where publication has been refused or rejected and the decision has been challenged before the administrative court, the date of publication is that of the decision ordering publication (Article 26 of the Decree of 4 January 1955).

The limitation period, formerly two years, was extended to five years by Article 2 of Decree No. 2020-1452 of 27 November 2020. Article 12, second paragraph, of the same decree provides: “The other articles enter into force on 1 January 2021. They apply to pending proceedings on that date, with the exception of paragraphs 19 and 25 of Article 1 and Article 10, which apply to proceedings commenced from 1 January 2021.”

The amendment to the limitation period thus applies to pending proceedings, subject to the caveat that where the period has already been extended and the judgment ordering the extension specified that it was for a further two-year period, the res judicata authority of that decision will preclude application of Article 12.

4. Time to pay (delai de grace)

Article 510 of the Code of Civil Procedure provides: “Subject to the following paragraphs, time to pay may be granted only by the decision whose enforcement it is intended to defer.

In cases of urgency, the same power belongs to the interim relief judge.

After service of a payment order or an instrument of seizure, or from the hearing prescribed by Article R. 3252-17 of the Labour Code, as the case may be, the enforcement judge has jurisdiction to grant time to pay.

The grant of time must be reasoned.”

Article 512 of the Code of Civil Procedure provides: “Time to pay may not be granted to a debtor whose assets are seized by other creditors, nor to one who is subject to judicial settlement or winding-up, or who has by his own act diminished the security he had contractually given to his creditor.

The debtor loses, in the same cases, the benefit of any time to pay previously obtained.”

Article 1343-5 of the Civil Code provides: “The judge may, taking into account the debtor’s situation and having regard to the creditor’s needs, postpone or stagger, within a limit of two years, payment of the sums due.

By a specially reasoned decision, he may order that the sums corresponding to deferred instalments bear interest at a reduced rate not less than the statutory rate, or that payments be applied first to the capital.

He may make these measures conditional upon the debtor performing acts likely to facilitate or guarantee payment of the debt.

The judge’s decision suspends the enforcement proceedings that have been commenced by the creditor. Interest surcharges or penalties for late payment are not incurred during the period fixed by the judge.

Any stipulation to the contrary is deemed unwritten.

This article does not apply to maintenance debts.”

Article R. 121-1 of the Code of Civil Enforcement Proceedings provides: “In matters of subject-matter jurisdiction, any judge other than the enforcement judge must raise his lack of jurisdiction of his own motion.

The enforcement judge may not modify the operative part of the court decision serving as the basis for the proceedings, nor suspend its enforcement. However, after service of the payment order or the instrument of seizure, as the case may be, he has jurisdiction to grant time to pay.

The enforcement judge may raise his lack of jurisdiction of his own motion.”

The enforcement judge therefore has the power to grant time to pay.

The reasoning behind the application presents no particular feature: it must be demonstrated that granting time would enable the debtor to repay the creditor.

C. The pursuing creditor

1. Status as creditor

Article R. 321-3, second paragraph, of the Code of Civil Enforcement Proceedings provides: “If the seizing creditor acts by virtue of a transmission, on whatever ground, of the debt contained in the enforceable instrument founding the proceedings, the payment order shall reference the instrument of transmission, unless the debtor has been duly notified thereof in advance.”

The Cour de cassation accordingly held: “It results from Article R. 321-3 of the Code of Civil Enforcement Proceedings that if the seizing creditor acts by virtue of a transmission, on whatever ground, of the debt contained in the enforceable instrument, the payment order constituting seizure shall reference the instrument of transmission unless the debtor has been duly notified in advance, and that publication at the Commercial Register of the merger-absorption concerning the pursuing creditor cannot substitute for such notification.” (Cass. 2nd civ., 29 Sept. 2022, No. 21-16.146, published in the Bulletin).

2. Abuse of seizure

Article L. 111-7 of the Code of Civil Enforcement Proceedings:

“The creditor has the choice of measures appropriate to secure enforcement or preservation of his debt. Their execution may not exceed what is necessary to obtain payment of the obligation.”

Article L. 121-2 of the Code of Civil Enforcement Proceedings:

“The enforcement judge has the power to order the discharge of any unnecessary or abusive measure and to award damages against the creditor in the event of abuse of seizure.”

Article L. 121-2 identifies two criteria: needlessness and abuse.

Case law teaches us, regarding needlessness, that a court errs in its reasoning where it fails to properly characterise the needlessness of the foreclosure. The court that ordered discharge of the foreclosure, on the grounds that the debt was modest relative to the value of the seized property, that a cheque for EUR 1,000 had been lodged with a CARPA account after the creditor refused to accept it, that the seized property generated monthly rent of EUR 736.58 which, sequestered in a CARPA account following the creditor’s opposition, could enable settlement within approximately ten months through earnings attachment, and that the foreclosure was therefore unnecessary, applied improper reasoning to characterise needlessness (Civ. 2nd, 22 June 2017, No. 16-16.871).

As to abuse, the Aix-en-Provence Court of Appeal held: “finding excessive a foreclosure carried out given the modest amount being recovered, the possibility of resorting to seizure of monetary assets, and the fact that the auction, if ordered, would not enable the pursuing creditor to recover his debt, and holding that such seizure is both unnecessary and abusive such that there is no ground to order the forced sale” (Court of Appeal, Aix-en-Provence, 15 June 2009).

This case law, followed by other Courts of Appeal (see e.g. Court of Appeal, Agen, 19 June 2012, No. 12/00688), identifies the criteria for abuse:

The modest amount being recovered;
The existence of alternatives to foreclosure;
The fact that the sale would not enable the pursuing creditor to be paid in full.

D. The property

1. Absence of concurrent seizure of another property

Article L. 311-5, first paragraph, of the Code of Civil Enforcement Proceedings: “A creditor who has seized a property of his debtor may not commence new foreclosure proceedings on another property of that debtor except where the property already seized is insufficient.”

The pursuing creditor cannot conduct multiple simultaneous foreclosure proceedings unless the value of the seized property is insufficient to discharge the debt.

2. Priority seizure of the mortgaged property

Article L. 311-5, second paragraph, of the Code of Civil Enforcement Proceedings: “The creditor may not seize properties that are not mortgaged in his favour except where the mortgage from which he benefits does not enable him to satisfy his rights.”

The pursuing creditor must first seize the property mortgaged in his favour, unless its value is insufficient to discharge the debt.

In both cases, the sufficiency of the value of the first property seized is left to the sovereign appreciation of the enforcement judge.

3. Limitation of the scope of seizure (cantonnement)

Article L. 321-6, first paragraph, of the Code of Civil Enforcement Proceedings:

“In the event of simultaneous seizures of several of his properties, the debtor may apply to the judge for the limitation of those seizures.”

Article R. 321-12, first paragraph, of the Code of Civil Enforcement Proceedings:

“The enforcement judge shall grant the debtor’s application for the effects of the seizure to be provisionally limited to one or more of his properties where the debtor establishes that the value of those properties is sufficient to satisfy the pursuing creditor and the registered creditors. The judgment shall indicate the properties on which proceedings are provisionally suspended. After the final sale, the creditor may resume proceedings on the excepted properties if the price of the properties sold by auction does not suffice to satisfy him.”

The debtor may seek a limitation of scope where the seizure relates to multiple properties and one would suffice to satisfy both the pursuing creditor and the registered creditors.

The limitation operates as a stay of proceedings within the meaning of Article 378 of the Code of Civil Procedure: “The decision to stay suspends the course of the proceedings for the duration or until the occurrence of the event it determines.”

The application must therefore be made in limine litis pursuant to Articles 73 and 74 of the Code of Civil Procedure.

4. Conversion of the seizure into a judicial mortgage (hypothèque judiciaire)

Article L. 321-6, second paragraph, of the Code of Civil Enforcement Proceedings:

“He may also apply to the judge for a partial conversion of the seizures into a mortgage on certain of his properties, which will take rank on the date of publication of the seizure, subject to registration of the security within one month of notification of the decision.”

Article R. 321-12, second paragraph, of the Code of Civil Enforcement Proceedings:

“Where, under the same conditions, the judge orders the cancellation of the seizure on the initially seized properties that he designates and the registration of a judicial mortgage, the pursuing creditor, in order for the registration to take rank on the date of publication of the payment order constituting seizure, causes the judgment to be published in the margin of the copy of the payment order and the mortgage to be registered under the conditions of ordinary law.”

The debtor may also seek conversion into a judicial mortgage where the seizure relates to multiple properties and one would suffice to satisfy the pursuing creditor and registered creditors.

In this case, the mortgage takes rank on the date of publication of the payment order constituting seizure, subject to publishing the registration within one month of notification of the decision. Registration is effected according to ordinary rules.

The judgment ordering cancellation of the payment order and, consequently, the cessation of proceedings, is published in the margin of the said payment order.

Publication is requested by sending to the competent land registry service the original and copy of the instrument to be published, together with identity certification of the parties and, where necessary, a property status request (CERFA form No. 3233-SD), and a cheque payable to the Tresor public in the amount of:

EUR 15 for publication;
EUR 12 per property and/or co-ownership lot for the property record;
EUR 2 postage for return of the property record.

E. The debtor

1. Over-indebtedness (surendettement)

The admissibility decision of the over-indebtedness commission (Commission de surendettement des particuliers) automatically stays enforcement proceedings in progress and prohibits new proceedings, pursuant to Article L. 722-2 of the Consumer Code: “Admissibility of the application entails the suspension and prohibition of enforcement proceedings brought against the debtor’s assets and of assignments of earnings consented by the debtor in respect of non-maintenance debts.”

The suspension of enforcement does not set aside the effects of the payment order constituting seizure; however, fruits accruing after the admissibility decision become available again.

2. Judicial liquidation (liquidation judiciaire)

The opening of insolvency proceedings stays or prohibits all enforcement measures over both movables and immovables, pursuant to Article L. 622-21 of the Commercial Code:

“I. The opening judgment interrupts or prohibits any legal action by all creditors whose claim is not mentioned in paragraph I of Article L. 622-17 seeking:

1. The condemnation of the debtor to pay a sum of money;

2. The termination of a contract for non-payment of a sum of money.

II. It also stays or prohibits all enforcement proceedings by those creditors over both movables and immovables, as well as any distribution procedure that has not produced an attributive effect before the opening judgment.

III. Time limits prescribed on pain of forfeiture or termination of rights are accordingly interrupted.”

If foreclosure proceedings are pending at the time of publication in the Official Gazette (BODACC) of an opening judgment, the proceedings are immediately interrupted.

Two scenarios arise:

The insolvency proceedings are opened before foreclosure: the liquidator must apply for the sale at auction; this specific procedure is not addressed here;
The insolvency proceedings are opened during pending foreclosure. The opening judgment suspends the proceedings, which may be resumed by the liquidator on the basis of the conditions of sale filed by the initial pursuing creditor. Case law states: “whatever the regime applicable to the foreclosure procedure, the judicial liquidation judgment suspends proceedings subsequently commenced; those proceedings may be resumed by the liquidator or by the pursuing creditor, with the authorisation of the supervising judge, in the state they were in on the date of the opening judgment” (Civ. 2nd, 7 June 2012, No. 11-18.426).

F. The sale

1. Manifestly inadequate reserve price (mise a prix)

Article R. 322-5 of the Code of Civil Enforcement Proceedings:

“In addition to the particulars prescribed by Article 56 of the Code of Civil Procedure, the summons shall contain, on pain of nullity:

[…]

5. An indication of the reserve price as set in the conditions of sale and of the possibility of challenging the amount for manifest inadequacy;“

Article L. 322-6, second paragraph, of the Code of Civil Enforcement Proceedings:

“The debtor may, in the event of manifest inadequacy of the reserve price, refer the matter to the judge in order to have a reserve price set that reflects the market value of the property and market conditions. However, in the absence of bids, the pursuing creditor may only be declared the successful bidder at the initial reserve price.”

The debtor may challenge the reserve price for manifest inadequacy. The sanction for absence of bids (carence d’encheres) may lead the pursuing creditor to set a low reserve, which the debtor may contest. Where applicable, the debtor must demonstrate that the reserve is below market value.

Setting a low reserve remains a protective strategy for the pursuing creditor whose debt is small, since in the absence of bids, he will be declared the successful bidder at the initial reserve.

2. Application for private sale (vente amiable)

Article R. 322-15 of the Code of Civil Enforcement Proceedings:

“At the orientation hearing, the enforcement judge, after hearing the parties present or represented, verifies that the conditions of Articles L. 311-2, L. 311-4 and L. 311-6 are met, rules on any challenges and incidental applications, and determines how the procedure shall continue, either by authorising a private sale at the debtor’s request or by ordering a forced sale.

Where he authorises the private sale, the judge satisfies himself that it can be concluded in satisfactory conditions having regard to the situation of the property, the economic conditions of the market, and any steps already taken by the debtor.”

The application for a private sale may be made by the debtor without being represented by counsel. The judge satisfies himself that it can be concluded in satisfactory conditions, meaning the debtor’s application must be accompanied by evidence demonstrating both the seriousness of his commitment and the accuracy of his valuation.

IV. The orientation judgment

A. Effects of the orientation judgment

Article R. 311-5 of the Code of Civil Enforcement Proceedings:

“On pain of inadmissibility pronounced of the court’s own motion, no challenge and no incidental application may, save where otherwise provided, be made after the orientation hearing prescribed by Article R. 322-15, unless it relates to procedural acts subsequent thereto. In that case, the challenge or incidental application is made within fifteen days of notification of the act.”

The orientation judgment purges all challenges and incidental applications, unless they relate to acts subsequent to the orientation hearing.

The Cour de cassation has held that the Court of Appeal must address the pursuing creditor’s argument raising the inadmissibility of a challenge raised for the first time on appeal, in a case where the debtor failed to appear at the orientation hearing (Civ. 2nd, 1 October 2009, No. 07-18.630).

The Cour de cassation has also held that the Court of Appeal must raise of its own motion the inadmissibility of challenges and incidental applications raised for the first time on appeal (Civ. 2nd, 11 March 2010, No. 09-13.312).

However, the obligation on parties to foreclosure proceedings to raise, on pain of inadmissibility, all challenges and incidental applications at the orientation hearing does not apply to third parties to the proceedings (Civ. 2nd, 4 December 2014, No. 13-24.870): “Whereas to declare inadmissible the voluntary intervention of the Caisse des depots et consignations, the enforcement judge, after recalling Article R. 311-5, held that this provision does not distinguish according to whether the challenge emanates from a party or a third party […]

In so ruling, whereas the obligation on parties to foreclosure proceedings to raise, on pain of inadmissibility, all challenges and incidental applications at the orientation hearing does not apply to third parties to the proceedings, the enforcement judge violated the above-cited provisions;“.

The inadmissibility of challenges and incidental applications subsequent to the orientation hearing is binding on the judge on the merits when subsequently seized of an application that the enforcement judge had jurisdiction to hear: “7. It results from the combination of these provisions that an application made by the debtor against the pursuing creditor before a judge on the merits, after the orientation hearing prescribed by Article R. 322-15, may not be declared inadmissible by application of Article R. 311-5 or of the res judicata authority of the orientation judgment, unless the enforcement judge previously seized of the foreclosure had jurisdiction to hear the application.” (Cass. 2nd civ., 20 Oct. 2022, No. 21-11.783, published in the Bulletin).

Furthermore, “where procedural bars raised in the context of foreclosure proceedings have been declared inadmissible on the basis of this provision, that inadmissibility does not preclude the same bars from being invoked in the context of other proceedings.” (Cass. 2nd civ., 8 Dec. 2022, No. 21-10.590, published in the Bulletin).

Finally, the enforcement judge is required to raise of his own motion the arguments resulting from violation of the public policy provisions of the Consumer Code. The Cour de cassation has raised of its own motion the argument resulting from the presence of an unlawful compound interest clause (anatocisme) in the mortgage contract and quashed the appellate decision, even though the debtor’s counsel had not identified the issue. It is therefore possible to appeal and invite the court to raise this argument of its own motion, even in the absence of appearance at first instance (Cass. 1st civ., 17 June 2015, No. 14-11.807).

B. Types of orientation judgment

1. Common provisions

Article R. 322-15 of the Code of Civil Enforcement Proceedings:

“At the orientation hearing, the enforcement judge, after hearing the parties present or represented, verifies that the conditions of Articles L. 311-2, L. 311-4 and L. 311-6 are met, rules on any challenges and incidental applications, and determines how the procedure shall continue, either by authorising a private sale at the debtor’s request or by ordering a forced sale.

Article R. 322-18 of the Code of Civil Enforcement Proceedings:

“The orientation judgment states the amount accepted for the pursuing creditor’s debt in principal, costs, interest and other ancillary amounts.”

The judgment rules on incidental applications, resolves challenges raised by the parties, determines how the procedure will continue, and states the amount of the debt in principal, costs, interest and other ancillary amounts.

The use of the term “states” was the source of doctrinal controversy until a series of decisions clarified the judge’s role. The question was: where the judge merely “states” the amount of the debt, does this statement have the authority of res judicata?

The Cour de cassation first affirmed that the enforcement judge must state the amount of the debt without being bound by the amount appearing in the payment order constituting seizure (Civ. 2nd, 24 September 2015, No. 14-20.009).

It then specified that the orientation judgment, insofar as it fixes the amount of the pursuing creditor’s debt, has the authority of res judicata on the merits, even where no challenge has been raised on this point (Com., 13 September 2017, No. 15-28.833).

Finally, by advisory opinion of 12 April 2018 (advisory opinion request No. P 18-70.004, opinion No. 15008), issued at the request of the enforcement judge of the Poitiers court, the Second Civil Chamber recalled that:

“The enforcement judge rules as a judge on the merits (Article R. 121-14 of the Code of Civil Enforcement Proceedings), and decides questions relating to the merits of the right (Article L. 213-6 of the Code of Judicial Organisation), so that his decisions have, save where otherwise provided, the authority of res judicata on the merits.”

It accordingly issued the following opinion:

“In foreclosure matters, in order to fix the amount of the pursuing creditor’s debt pursuant to Article R. 322-18, the enforcement judge is bound to verify that it conforms to the terms of the enforceable instrument founding the proceedings, pursuant to Article R. 322-15, whether or not the debtor challenges that amount.

If he must carry out this verification of his own motion, he also exercises, as judge on the merits, the functions conferred on him by the Code of Civil Procedure or by particular provisions.”

The statement of the quantum of the pursuing creditor’s debt thus incontestably has the authority of res judicata.

2. Orientation judgment authorising a private sale

Article R. 322-21 of the Code of Civil Enforcement Proceedings:

The judge assesses the pursuit costs at the request of the pursuing creditor.

He sets the date on which the case will be recalled at a hearing, within a period not exceeding four months.

Article R. 322-20 of the Code of Civil Enforcement Proceedings:

“An application for the private sale of the property may be made and decided before service of the summons to appear at the orientation hearing, provided the debtor joins the registered creditors as parties.

The decision granting the application suspends the enforcement proceedings, with the exception of the time allowed for registered creditors to declare their claims.”

The judgment authorising the private sale sets the minimum price below which the property may not be sold.

The judge fixes the date of a recall hearing within a period not exceeding four months. In practice, the debtor often has a longer period because the four months run from the deliberation, which itself occurs several weeks after the hearing. At the recall hearing, the debtor may again benefit from additional time for the same reasons.

This judgment suspends the proceedings, whether the application is made before or after service of the summons to the orientation hearing (Civ. 2nd, 23 October 2008, No. 08-13.404).

The stay of proceedings suspends the lapse period of the payment order from the date of publication of the judgment in the margin of the payment order, pursuant to Article R. 321-22:

“This period is suspended or extended, as the case may be, by an entry in the margin of the published copy of the payment order of a court decision ordering the suspension of enforcement proceedings, the postponement of the sale, the extension of the effects of the payment order, or a decision ordering the re-opening of bidding.”

3. Orientation judgment ordering sale by auction

Article R. 322-26 of the Code of Civil Enforcement Proceedings:

“Where the enforcement judge orders the forced sale, he fixes the date of the auction hearing within a period of between two and four months from the pronouncement of his decision.

The judge determines the arrangements for viewing the property at the request of the pursuing creditor.”

The judge fixes an auction date within two to four months of the deliberation, and authorises viewing of the property according to the arrangements he sets – for example, within the fifteen days preceding the sale, with the assistance of an enforcement officer, and if necessary with the assistance of the police and a locksmith.

C. Notification of the orientation judgment

Article R. 311-7, second paragraph, of the Code of Civil Enforcement Proceedings:

“Notification of decisions is made by service. However, where by virtue of a particular provision the enforcement judge rules by order rendered at last instance, his decision is notified by the registry simultaneously to the parties and their counsel. The same applies to notification of the orientation judgment towards a private sale where the debtor has not constituted counsel, and of decisions rendered pursuant to Articles R. 311-11 and R. 321-21.”

The orientation judgment ordering a forced sale and judgments on procedural incidents must be notified by service. Conversely, the orientation judgment ordering a private sale, the judgment declaring lapse of the payment order, and the judgment recording expiry of the payment order are notified by the registry to the parties and their counsel by registered letter, pursuant to the provisions on notification in ordinary form (Code of Civil Procedure, Articles 665 and 670-3).

V. Registered creditors

1. Declaration of indebtedness (declaration de creance)

The time limit for filing the declaration and the supporting documents vary according to the date on which the mortgage registration was published.

a) Mortgage registration prior to publication of the payment order

Article R. 322-12 of the Code of Civil Enforcement Proceedings:

“The period within which the registered creditor to whom the payment order constituting seizure has been notified must declare his debt is two months from notification.

However, the creditor who demonstrates that his default is not attributable to him may apply for authorisation to declare his debt after the prescribed time limit. The judge rules by order on application (ordonnance sur requete), which must be filed, on pain of inadmissibility, no later than fifteen days before the date set for the auction hearing or for recording the private sale.”

Article R. 322-7(4) of the Code of Civil Enforcement Proceedings:

“4. A summons to declare debts registered against the seized property, in principal, costs and accrued interest, with an indication of the rate of default interest, by counsel’s instrument filed with the clerk of the enforcement judge and accompanied by a copy of the debt instrument and the registration certificate, and to notify the same on the same day or the next working day to the pursuing creditor and the debtor, in the same form or by service;”

The registered creditor has two months from notification of the pursuing creditor’s communication of the payment order and summons to the orientation hearing.

The creditor may apply to the enforcement judge, by application ex parte (requete), for authorisation to declare out of time where the default is not attributable to him. This application must be filed, on pain of inadmissibility, no later than fifteen days before the auction or private sale hearing date.

The debt is declared in principal, costs and accrued interest with the rate of default interest, by counsel’s instrument filed with the auction clerk’s office, accompanied by:

A copy of the enforceable instrument;
The mortgage registration certificate bearing the publication formula.

The declaration must be notified on the same day or the next working day to the pursuing creditor and the debtor, by counsel’s instrument or by service.

In practice, the instrument will be notified via the electronic court communications system (RPVA) to the pursuing creditor’s counsel and to the debtor if he has instructed counsel; otherwise, notification is by service.

Note: Article R. 322-13, concerning the intervention in the proceedings of a creditor registered after publication of the payment order, provides that the creditor “intervenes in the proceedings” by declaring his debt. The declaration of indebtedness therefore constitutes appearance (constitution).

This provision is not reproduced in the provisions relating to creditors registered before publication of the payment order. This being evidently a legislative oversight, it is generally accepted that the declaration also constitutes appearance for creditors registered before publication.

Nevertheless, it is possible to notify with the declaration a formal notice of appearance accompanied by a summons to communicate the documents from the summons. This is the preferable approach since the declaration per se does not contain such a summons.

b) Mortgage registration subsequent to publication of the payment order

Article R. 322-13 of the Code of Civil Enforcement Proceedings:

“Creditors who have registered their security on the property after publication of the payment order constituting seizure but before publication of the sale intervene in the proceedings by declaring their debt, stated in principal, costs and interest accrued to the date of declaration. On pain of inadmissibility, the declaration is made by counsel’s instrument filed with the clerk of the enforcement judge within one month following registration, accompanied by a copy of the debt instrument, the registration certificate, and a land registry extract obtained on the date of registration. The declaration is notified, in the same form or by service, on the same day or the next working day, to the pursuing creditor and the debtor.”

A creditor who registers a mortgage after publication of the payment order but before publication of the sale has one month from registration to intervene in the proceedings by declaring his debt.

The requirements are the same as for creditors registered before publication, save that there must additionally be filed:

A land registry extract obtained on the date of registration.

The return of the original bearing the publication formula may take several months after filing with the land registry service. The registering party will therefore systematically obtain a land registry extract on the date of registration, to ascertain the publication references and identify any pending proceedings.

2. Sanction for late declaration

The registered creditor who fails to declare within the prescribed time loses the benefit of his mortgage ranking and is relegated to the status of an unsecured creditor (créancier chirographaire).

3. Challenging the declaration of indebtedness

The conditions and time limits for challenging the declaration depend primarily on Article R. 311-5:

Where the declaration is notified before the orientation judgment, it must be challenged at the orientation hearing; where it is filed after the orientation judgment, it must be challenged by conclusions on an incident within fifteen days of notification.

Case law confirms this without ambiguity.

Regarding the obligation on the enforcement judge to decide challenges to declarations at the orientation hearing: “The enforcement judge is bound to decide challenges to the validity of declarations of indebtedness raised at the orientation hearing.” (Cass. advisory opinion, 16 May 2008, No. 08-00.002, published in the Bulletin).

Where the declaration precedes the orientation judgment, the challenge may not be formalised thereafter, by application of Article R. 311-5, amply confirmed by the case law:

“Whereas on pain of inadmissibility pronounced of the court’s own motion, no challenge and no incidental application may be made after the orientation hearing, unless it relates to subsequent procedural acts; […] In so ruling, whereas these applications, raised for the first time on appeal, had been made after the orientation hearing and did not relate to subsequent acts, so that it was required to pronounce their inadmissibility of its own motion, the Court of Appeal violated the above-cited provisions;” (Cass. civ., 2nd, 11 March 2011, No. 09-13.312);
“Whereas under Article 6 of Decree No. 2006-936 of 27 July 2006, on pain of inadmissibility pronounced of the court’s own motion, no challenge and no incidental application may be made after the orientation hearing; having found that the orientation hearing was held on 20 October 2008 and that a judgment had rejected the challenges […] and stayed proceedings […], the Court of Appeal correctly decided that the applications made subsequently were inadmissible;” (Cass. civ., 2nd, 17 Nov. 2011, No. 10-25.439, published in the Bulletin).

Where the declaration post-dates the orientation judgment, it must by application of the same rules be challenged within fifteen days of notification.

VI. Private sale by agreement (vente de gre a gre)

Article L. 322-1 of the Code of Civil Enforcement Proceedings:

“Property is sold either privately with judicial authorisation, or by auction.

By agreement between the debtor, the pursuing creditor, the creditors registered on the seized property on the date of publication of the payment order, the creditors registered before publication of the title of sale who have intervened in the proceedings, and the creditor mentioned in Article 2374(1 bis) of the Civil Code, the property may also be sold by private agreement after orientation towards a forced sale and until the opening of bidding.”

The private sale by agreement applies where the pursuing creditor, registered creditors and, where applicable, the co-ownership association (syndicat des coproprietaires) authorise the debtor to sell his property privately.

The statute does not specify the form of this sale, but provides that it may take place only between orientation towards a forced sale and the opening of bidding. If the sale is concluded before the auction hearing, the pursuing creditor will not call for the sale, and this failure triggers lapse of the payment order, pursuant to Article R. 322-27:

“On the appointed day, the pursuing creditor or, failing him, any registered creditor, thereby subrogated in the pursuit, calls for the sale.

If no creditor calls for the sale, the judge records the lapse of the payment order constituting seizure. In that case, the defaulting pursuing creditor bears all the pursuit costs incurred, unless the judge otherwise decides by a specially reasoned decision.”

In practice, where a private sale by agreement takes place before the auction hearing, the notary has two options:

Conclude the sale but await publication of the judgment ordering cancellation of the payment order before publishing the deed of sale;
Request from the pursuing creditor authorisation for discharge of the payment order, in addition to the customary discharge authorisations from all registered creditors.

The second option is safer for the purchaser since it guarantees the enforceability of the sale from the date of signature, without having to await the judgment recording lapse.

The statute only authorises private sale by agreement between orientation towards a forced sale and the auction hearing because:

Between service of the payment order and the summons to the orientation hearing, an application for private sale may be made by the debtor by way of summons;
At the orientation hearing, the private sale with judicial authorisation may be sought by the debtor by way of written submissions.

The statute thus provides a mechanism for private sale at every stage of the procedure: first under judicial control, then without judicial control but with the agreement of the parties and the co-ownership association.

In practice, nothing prevents the debtor from obtaining his creditors’ agreement to sell privately at any stage, although this requires different techniques to properly terminate the proceedings:

Before publication of the payment order: the private sale requires non-publication;
After publication: either the debtor authorises discharge, or he summons to the orientation hearing, files submissions seeking discontinuance, and asks the judge to order cancellation of the payment order.

Example: the case is oriented towards a private sale with judicial authorisation, but the debtor cannot sell on the terms of the orientation judgment. He nevertheless presents the pursuing creditor and registered creditors with a compromise of sale at a price above the expected auction price. The pursuing creditor and registered creditors may accept a private sale that the enforcement judge could not approve, since he would be bound by the res judicata authority of his own orientation judgment. The pursuing creditor must therefore authorise discharge with the consent of the registered creditors, before filing discontinuance submissions at the recall hearing.

Finally, the pursuing creditor’s counsel may claim payment of assessed costs, fixed fees, and proportional fees on the same basis as for a judicial private sale. The debtor will have difficulty opposing this: if he does, the pursuing creditor may simply refuse consent and pursue the forced sale.

VII. The auction hearing

A. Postponement of the auction hearing

1. Application for postponement

The application for postponement must always be made by way of written submissions (Cass. 2nd civ., 4 Nov. 2021, No. 20-16.393, published in the Bulletin).

a) Force majeure

Article R. 322-28 of the Code of Civil Enforcement Proceedings:

“The forced sale may be postponed only in the event of force majeure or at the request of the over-indebtedness commission made pursuant to Articles L. 722-4 or L. 721-7 of the Consumer Code.”

The auction hearing may be postponed only in the event of force majeure.

The application must be made by written submissions, on pain of lapse of the payment order. Case law treats this application as an incidental application which must accordingly be made in writing; failure to submit a written application for postponement triggers lapse for failure to call for the sale (Civ. 2nd, 22 February 2012, No. 11-11.914).

If the enforcement judge refuses to order the postponement, the pursuing creditor’s counsel must call for the sale, on pain of lapse. This is why publicity formalities should be completed where the postponement is not assured.

Example: the debtor applies for a postponement; the pursuing creditor opposes it. The creditor proceeds, as a precaution, with publicity formalities in order to be able to call for the sale should the judge refuse the postponement. Both failure to publicise and failure to call for the sale are sanctioned by lapse.

b) Request by the over-indebtedness commission

Article R. 322-28 of the Code of Civil Enforcement Proceedings:

“The forced sale may be postponed only in the event of force majeure or at the request of the over-indebtedness commission made pursuant to Articles L. 722-4 or L. 721-7 of the Consumer Code.”

Where the admissibility decision post-dates the orientation judgment ordering forced sale, the postponement is not automatic. Articles L. 722-4 and L. 722-7 of the Consumer Code provide: “In the event of a foreclosure, where the forced sale has been ordered, postponement of the auction date may only result from a decision of the judge in charge of the foreclosure, seized to that end by the commission, on serious and duly justified grounds.”

The commission may seize the judge at any time from the filing of the over-indebtedness application to seek postponement. The enforcement judge may refuse the request (for an example, see: TJ Avignon, 18 Feb. 2021, No. 18/01525).

Case law adds that the auction judgment rejecting a postponement request by the commission is not subject to appeal, which the judge must raise of his own motion under Article 125 of the Code of Civil Procedure, whereby the absence of available remedies constitutes a public-policy procedural bar (Civ. 2nd, 29 September 2011, No. 10-27.658).

c) Appeal of the orientation judgment

Article R. 322-19 of the Code of Civil Enforcement Proceedings:

“Appeal against the orientation judgment is lodged, prepared and decided according to the fixed-date procedure (procédure à jour fixe) without the appellant needing to demonstrate imminent harm in his application.

Where the appeal is against a judgment ordering sale by auction, the court rules no later than one month before the date set for the auction. Failing which, the enforcement judge may, at the request of the pursuing creditor, postpone the date of the forced sale hearing. Where a stay of proceedings resulting from Article R. 121-22 prevents the auction hearing from taking place on the scheduled date and the judgment ordering the auction has been confirmed on appeal, the auction date is fixed by order of the enforcement judge on application. Decisions of the enforcement judge rendered pursuant to this paragraph are not subject to appeal.”

Where a party appeals the orientation judgment, the appellate court should normally rule no later than one month before the auction date. In practice, this is rarely achieved, and the statute provides that the pursuing creditor (not the debtor) may apply for postponement.

The debtor who wishes to apply for postponement based on the pending appeal must demonstrate that the appellate proceedings present the characteristics of force majeure in the sense that the court’s decision is unforeseeable.

If the appellant has also obtained a stay of proceedings under Article R. 121-22, that stay prevents the auction from proceeding on the scheduled date, and the orientation judgment is subsequently confirmed on appeal, the pursuing creditor must apply for a new auction date by requete.

Case law confirms that all judgments rendered at the orientation hearing are subject to the fixed-date appeal procedure: “Whereas, since appeal against judgments rendered at the orientation hearing by the enforcement judge is subject to the fixed-date procedure pursuant to Article R. 322-19, it followed that the appeal lodged without authorisation was inadmissible; the Court of Appeal violated the above-cited provisions;” (Cass. 2nd civ., 26 Sept. 2019, No. 15-24.702).

The appellant must join as parties not only the pursuing creditor but also all registered creditors. The Cour de cassation considers, rightly, that in foreclosure matters the subject-matter is indivisible: “But whereas the Court of Appeal correctly held that in foreclosure proceedings there is an indivisible link between all creditors, so that under Article 553 of the Code of Civil Procedure, the appeal of one of the parties to the proceedings before the enforcement judge, even if limited to challenging the pursuing creditor’s debt, must be made against all parties to the proceedings, on pain of inadmissibility;” (Cass. 2nd civ., 21 Feb. 2019, No. 17-31.350, published in the Bulletin).

d) Stay of enforcement

Case law holds that an enforcement judge’s decision granting time to pay binds the foreclosure judge, who must postpone the auction hearing (Civ. 2nd, 2 July 2009, No. 08-16.753). The decision is rendered on the basis of Article 480 of the Code of Civil Procedure:

“A judgment that decides in its operative part all or part of the merits, or that rules on a procedural objection, a procedural bar or any other incident, has, from its pronouncement, the authority of res judicata in relation to the dispute it decides.”

It is thus the res judicata authority of the judgment granting time to pay that constrains the foreclosure judge to accept the postponement.

Any stay of enforcement ordered by judgment (insolvency proceedings, personal recovery, etc.) should likewise constrain the judge to accept a postponement. This is precisely why the over-indebtedness commission, whose admissibility decision does not carry res judicata authority, must submit a specially reasoned application that the enforcement judge may refuse.

2. Effects of postponement

Article R. 322-29 of the Code of Civil Enforcement Proceedings:

“Where the forced sale is postponed to a later hearing, fresh publicity is carried out in the same form and within the same time limits as for the first forced sale.”

Some judges adjourn the matter to a later hearing without fixing a new auction date. This interposes an incidental hearing between the postponed sale hearing and the new auction hearing.

The statute does not specify within what time the matter must be adjourned; however, if the judge immediately fixes a new auction date, he must allow the pursuing creditor sufficient time to carry out fresh publicity formalities, which must be repeated and assessed for costs to be charged to the purchaser.

B. Auction hearing incidents

Article R. 322-48 of the Code of Civil Enforcement Proceedings:

“The provisions of this section are prescribed on pain of nullity of the bid, raised of the court’s own motion.

Any fresh valid bid cures the nullity of preceding bids.

The nullity of the last bid entails by operation of law the nullity of the adjudication.”

Article R. 322-49 of the Code of Civil Enforcement Proceedings:

“Challenges to the validity of bids are made orally at the hearing, through counsel. The judge rules immediately and, where applicable, immediately resumes bidding under Article R. 322-43.”

Article R. 322-43 of the Code of Civil Enforcement Proceedings:

“The judge announces that bidding will start from the reserve price set, as the case may be, in the conditions of sale or in the judicial decision prescribed by Article L. 322-6, second paragraph.”

Nullity of a bid does not require the demonstration of prejudice. It operates by operation of law. However, valid subsequent bids cure the nullity of invalid bids, so that only the nullity of the last bid is problematic.

Challenges to bid validity are made orally at the hearing through counsel. Where the judge finds nullity, bidding resumes ab initio – from the reserve price set in the conditions of sale or in the judicial decision.

C. Remedies

1. Appeal

Article R. 322-60, second paragraph, of the Code of Civil Enforcement Proceedings:

“Only an auction judgment that rules on a challenge is subject to appeal on that ground, within fifteen days of notification.”

The auction judgment is subject to appeal only where it rules on a challenge, and the appeal lies only against the part of the judgment dealing with that challenge (CA Poitiers, 16 October 2009, No. 09/00898).

An appeal in cassation nevertheless remains available where the auction judgment cannot be the subject of an appeal for excess of power (Civ. 2nd, 22 November 2001, No. 00-13.773; Civ. 2nd, 6 December 2012, No. 11-24.028).

2. Prohibition of other remedies

Notwithstanding Article R. 322-60, second paragraph, which limits the right of appeal to auction judgments that rule on a challenge, the Cour de cassation maintains longstanding restrictive case law holding that an auction judgment that has not ruled on any challenge is not subject to any remedy, save for excess of power:

“But whereas an auction judgment that rules on no challenge or incidental application is not subject to any remedy;” (Cass. 2nd civ., 6 Jan. 2011, No. 09-70.437, Bull. 2011, II, No. 1).
“But whereas an auction judgment, not having ruled on any challenge, is not subject to any remedy save for excess of power;” (Cass. 2nd civ., 20 Apr. 2017, No. 15-13.075).
“Whereas an auction judgment ruling on no challenge is not subject to any remedy save for excess of power;” (Cass. 2nd civ., 12 Apr. 2018, No. 17-15.418, Bull. 2018, II, No. 84).

These decisions do not enable us to determine whether an auction judgment that rules on a challenge is subject to remedies other than appeal, such as opposition, third-party opposition (tierce opposition) or revision.

3. The case of revision

Case law has long held that the auction judgment is not subject to revision:

“Whereas an adjudication decision that rules on no incident merely records a judicial contract and does not have the character of a judgment; it may not therefore be the subject of a remedy such as revision;” (Cass. civ., 2nd, 20 May 1985, No. 83-16.680).
“Whereas an adjudication decision that rules on no incident merely records a judicial contract and does not have the character of a judgment; it is therefore not susceptible of revision;” (Cass. civ., 2nd, 16 Jul. 1987, No. 86-11.367).

In a recent decision, the Rouen Court of Appeal nevertheless admitted in principle a petition for revision against an auction judgment that had not been the subject of any challenge at the hearing, while rejecting it on the ground that the conditions for revision were not, in the circumstances, met (CA Rouen, proximity chamber, 14 Oct. 2021, No. 20/02505).

The court thus departed from the Cour de cassation’s case law holding that an auction judgment is not subject to any remedy unless challenged at the hearing.

VIII. Payment of the auction price

A. Sanction of the defaulting successful bidder

Article 11 of the General Provisions of the Conditions of Sale:

“If the purchaser fails to pay the price or the assessed costs within the prescribed time, the property is put up for sale again at the request of the pursuing creditor, a registered creditor or the debtor, on the conditions of the first forced sale.

If the price at the new forced sale is lower than the first, the defaulting bidder shall be compelled to pay the difference by all legal means, pursuant to Article L. 322-12 of the Code of Civil Enforcement Proceedings.

The defaulting bidder shall bear the costs assessed at the first sale hearing. He shall be liable for interest at the statutory rate on his bid after a period of two months following the first sale until the new sale. The interest rate shall be increased by five points upon expiry of a period of four months from the date of the first definitive sale, pursuant to Article L. 313-3 of the Monetary and Financial Code.

In no case may the defaulting bidder claim restitution of sums paid.

If the price at the second sale exceeds the first, the difference shall belong to the creditors and the seized party.

The purchaser at the new sale owes the costs of that sale.”

Article L. 322-12 of the Code of Civil Enforcement Proceedings:

“In the absence of payment of the price or its consignment and payment of the assessed costs, the sale is resolved by operation of law.

The defaulting successful bidder is liable for payment of the difference between his bid and the re-sale price, if the latter is lower. He may not claim restitution of sums he has paid.”

Article R. 322-72 of the Code of Civil Enforcement Proceedings:

“The defaulting successful bidder at the initial sale bears the costs assessed at that auction. After a period of two months following the auction, he is liable for interest at the statutory rate on his bid until the new sale.

The person declared successful bidder at the new auction owes the costs of that sale.”

In the absence of payment or consignment of the price and payment of costs, the sale is resolved by operation of law and the property is put up for sale again through re-opening of bidding (reiteration des encheres).

The Cour de cassation has held, however, that the defaulting bidder may pay up until the pronouncement of the decision ruling on the challenge to the application for re-opening of bidding (Cass. 2nd civ., 1 Oct. 2020, No. 19-12.830, published in the Bulletin).

By way of sanction, the defaulting bidder is liable for:

The difference between the first and second auction prices, if the second is lower;
The costs of the first sale hearing;
Interest at the statutory rate on the sale price, running from two months after the auction hearing, and increased by five points from four months after the auction.

The defaulting bidder may not claim restitution of sums already paid, which are incorporated into the basis for distribution. For example, the 10% bank guarantee cheque will not be returned.

The action for the price differential is brought by the party with an interest, in practice:

By the debtor if the sale price already suffices to satisfy all registered creditors, since it increases his surplus;
By the debtor, pursuing creditor or registered creditors if the price difference enables recovery of a registration that would not otherwise have been covered.

The Cour de cassation has confirmed that the enforcement judge has jurisdiction to record the resolution of a sale by auction resulting, under Article L. 322-12, from failure to pay or consign the sale price (Civ. 2nd, 23 February 2017, No. 16-13.178).

Furthermore, “resolution of the sale may only be sought on the basis of the specific provisions of the Code of Civil Enforcement Proceedings, which derogate from ordinary sale law, and only so long as the sale price has not been paid.” (Cass. 2nd civ., 3 Feb. 2022, No. 20-19.522, published in the Bulletin).

In addition to non-payment of the price and assessed costs, Articles R. 322-66 and R. 322-67 also cite non-payment of transfer duties (droits de mutation) as grounds for re-opening bidding.

B. Re-opening of bidding (reiteration des encheres)

Article 11, first paragraph, of the General Provisions of the Conditions of Sale:

Article R. 322-66 of the Code of Civil Enforcement Proceedings:

“If the successful bidder fails to pay within the prescribed time the price, the assessed costs or the transfer duties, the property is put up for sale again at the request of the pursuing creditor, a registered creditor or the debtor, on the conditions of the first forced sale.”

Article R. 322-67 of the Code of Civil Enforcement Proceedings:

“Any person pursuing the re-opening of bidding shall obtain from the registry a certificate recording that the successful bidder has not demonstrated payment of the price or its consignment, or payment of the assessed costs or transfer duties.

The person pursuing the re-opening has the certificate served on the debtor, the successful bidder and, where applicable, the creditor who called for the sale.

In addition to the particulars prescribed for enforcement officer’s instruments, the service on the purchaser shall contain, on pain of nullity:

1. A summons to pay the price, the assessed costs and the transfer duties within eight days;

2. A reminder of Article L. 322-12, second paragraph, and Articles R. 311-6, R. 322-56, R. 322-58, R. 322-68, R. 322-69 and R. 322-72.”

The nullity of the first auction hearing requires the parties to re-open bidding on the conditions of the first forced sale.

The party wishing to pursue re-opening obtains from the registry a certificate recording the bidder’s failure to demonstrate consignment of the price, assessed costs or transfer duties.

In practice, the successful bidder must provide the auction registry with the receipt for payment of assessed costs, but not the receipt for the sale price, which the sequestrator should normally issue.

The registry will, however, be aware of non-payment of transfer duties since it is responsible for registration of the sale with the Revenue.

To demonstrate non-payment of the price, counsel must request from the designated sequestrator a certificate of non-consignment, which is then transmitted to the auction registry. The registry can then issue the non-consignment certificate, which the bidder’s counsel must have served by enforcement officer on the bidder and, if necessary, on the creditor who called for the sale.

The instrument must contain the particulars of Article 648 of the Code of Civil Procedure, together with reproduction of Article L. 322-12, second paragraph, and Articles R. 311-6, R. 322-56, R. 322-58, R. 322-68, R. 322-69 and R. 322-72.

Article R. 322-68 of the Code of Civil Enforcement Proceedings:

“The successful bidder may challenge the certificate within fifteen days of its service. The enforcement judge’s decision on this challenge is not subject to appeal.”

The Cour de cassation confirms that this challenge is made by counsel’s written submissions, pursuant to Article R. 311-6 (Civ. 2nd, 21 February 2013, No. 11-27.635).

Article R. 322-69 of the Code of Civil Enforcement Proceedings:

“If the successful bidder fails to comply with the summons, the property is put up for sale by new auction.

The new sale hearing is fixed by the enforcement judge on the application of the party pursuing the re-opening, at a date within two to four months following service of the registry certificate on the purchaser.

In the event of a challenge to the certificate under Article R. 322-67, this period runs from the date of the decision rejecting the challenge.

The debtor, the pursuing creditor, the registered creditors and the defaulting bidder are notified by the registry of the hearing date by registered letter with acknowledgment of receipt.”

If the defaulting bidder does not comply with the summons to pay within eight days (Article R. 322-67), the party pursuing re-opening files an application for a new auction date within two to four months of service of the registry certificate on the purchaser.

If the bidder challenges the certificate, this period runs from the judgment on the challenge.

The debtor, pursuing creditor, registered creditors and defaulting bidder are notified by the auction registry of the hearing date by registered letter with acknowledgment of receipt. If the notification cannot be delivered, the registry invites the parties to proceed by service, pursuant to Article R. 121-15.

Article R. 322-70 of the Code of Civil Enforcement Proceedings:

“Publicity formalities are repeated in the form and conditions prescribed by Articles R. 322-31 to R. 322-36.

They shall additionally state the amount of the adjudication.”

Article R. 322-71 of the Code of Civil Enforcement Proceedings:

“On the day of the hearing, bidding is re-opened in the conditions prescribed by Articles R. 322-39 to R. 322-49.”

Publicity formalities are repeated in the form and conditions prescribed for sale by auction.

The sole difference is that the notices must state the amount of the previous adjudication.

The auction hearing likewise proceeds in the form and conditions prescribed for sale by auction.

Article R. 322-72 of the Code of Civil Enforcement Proceedings:

The person declared successful bidder at the new auction owes the costs of that sale.”

The defaulting bidder bears the assessed costs of the previous hearing, while the new successful bidder bears those of the re-opening.

A higher bid (surenchere) is possible, provided the re-opening does not itself follow a higher-bid hearing, pursuant to Article R. 322-55, third paragraph:

“No higher bid may be received on the second adjudication.”

Finally, in the event of re-opening of bidding, the pursuing creditor’s counsel receives the full proportional fee, pursuant to Article A. 444-191, III, of the Commercial Code:

“III. In the event of re-opening of bidding, the pursuing counsel receives the full fee prescribed in paragraph I.”

IX. The specific case of the tenant

Article L. 321-4 of the Code of Civil Enforcement Proceedings:

“Leases granted by the debtor after the instrument of seizure are, whatever their duration, unenforceable against the pursuing creditor and the purchaser.

Proof of the prior existence of the lease may be established by any means.”

One might therefore conclude that in foreclosure matters, a lease concluded before service of the payment order is enforceable against the successful bidder, while a lease post-dating that service is unenforceable on the ground that it was concluded in breach of the rule on the unavailability of the property.

The Cour de cassation introduces, however, a considerable qualification: “service of a payment order constituting seizure does not prohibit the conclusion of a lease or the tacit renewal of a previously concluded lease, and a lease, even one concluded after publication of such a payment order, is enforceable against the successful bidder who had knowledge of it before the adjudication” (Cass. civ., 2nd, 27 Feb. 2020, No. 18-19.174, published in the Bulletin).

The Cour de cassation thereby reiterates longstanding case law whose reasoning it clarifies (Civ. 3rd, 15 January 1976, No. 74-13.676; Civ. 3rd, 11 February 2004, No. 02-12.762; Civ. 3rd, 23 March 2011, No. 10-10.804; Civ. 3rd, 9 June 2016, No. 15-10.595).

It directly contradicts Article 4 of the General Provisions of the Conditions of Sale, which states at its second paragraph that “leases granted by the debtor after service of the payment order constituting seizure are unenforceable against the pursuing creditor and the purchaser.”

The successful bidder who wishes to evict the tenant whose lease was concluded after service of the payment order must thus demonstrate that he had no knowledge of the lease’s existence.

Conversely, where the lease is unenforceable against the successful bidder, the latter may rely on Articles L. 322-13 and R. 322-64 of the Code of Civil Enforcement Proceedings:

Article L. 322-13:

“The auction judgment constitutes a title of eviction against the debtor.”

Article R. 322-64:

“Unless the conditions of sale provide for the debtor to remain in occupation, the successful bidder may enforce the eviction order he holds against the debtor and any occupier deriving rights from the debtor who has no right enforceable against him, from the date of payment of the price or its consignment and payment of the assessed costs.”

Defence strategies against foreclosure in France

Defence Strategies Against Foreclosure in France (saisie immobilière)

I. General rules of foreclosure procedure

A. The role of the enforcement judge (juge de l’exécution)

1. Jurisdiction of the enforcement judge

2. Powers of the enforcement judge

3. Obligations of the enforcement judge

B. The proceedings as an “instance”

1. The concept of instance

2. Discontinuance (desistement d’instance)

II. The procedure up to the orientation hearing

III. The orientation hearing

A. Enforcement

1. The enforceable instrument (titre exécutoire)

a) The interim order (ordonnance de refere)

b) The judgment or appellate decision

c) The authenticated deed (acte authentique)

2. The liquidated debt (creance liquide)

3. The due debt (creance exigible)

B. Procedure

1. Nullities (nullites)

2. Lapse (caducite)

a) Grounds for lapse

b) Effects of lapse

3. Limitation through lapse (peremption)

4. Time to pay (delai de grace)

C. The pursuing creditor

1. Status as creditor

2. Abuse of seizure

D. The property

1. Absence of concurrent seizure of another property

2. Priority seizure of the mortgaged property

3. Limitation of the scope of seizure (cantonnement)

4. Conversion of the seizure into a judicial mortgage (hypothèque judiciaire)

E. The debtor

1. Over-indebtedness (surendettement)

2. Judicial liquidation (liquidation judiciaire)

F. The sale

1. Manifestly inadequate reserve price (mise a prix)

2. Application for private sale (vente amiable)

IV. The orientation judgment

A. Effects of the orientation judgment

B. Types of orientation judgment

1. Common provisions

2. Orientation judgment authorising a private sale

3. Orientation judgment ordering sale by auction

C. Notification of the orientation judgment

V. Registered creditors

1. Declaration of indebtedness (declaration de creance)

a) Mortgage registration prior to publication of the payment order

b) Mortgage registration subsequent to publication of the payment order

2. Sanction for late declaration

3. Challenging the declaration of indebtedness

VI. Private sale by agreement (vente de gre a gre)

VII. The auction hearing

A. Postponement of the auction hearing

1. Application for postponement

a) Force majeure

b) Request by the over-indebtedness commission

c) Appeal of the orientation judgment

d) Stay of enforcement

2. Effects of postponement

B. Auction hearing incidents

C. Remedies

1. Appeal

2. Prohibition of other remedies

3. The case of revision

VIII. Payment of the auction price

A. Sanction of the defaulting successful bidder

B. Re-opening of bidding (reiteration des encheres)

IX. The specific case of the tenant

A question about this case file?