FORECLOSURE (SAISIE IMMOBILIERE)

This document provides a practical, comprehensive and chronological overview of foreclosure proceedings (saisie immobilière) under French law, aimed at legal professionals. Doctrinal controversies will not be addressed unless they present a practical interest. Court-ordered sales in the context of insolvency (liquidation judiciaire) or partition proceedings (licitation-partage) are not covered here.

Modification log

14/09/2023: first publication.

Key points

• The debtor must raise all claims at the orientation hearing (audience d’orientation). Challenges relating to acts and events prior to the orientation judgment will be declared inadmissible if raised afterwards.
• Challenges relating to acts and events subsequent to the orientation judgment must be filed within 15 days of the triggering event, on pain of inadmissibility.
• The debtor may submit, without a lawyer, a request for private sale (vente amiable). They will then have 4 months to sign a binding agreement (compromis de vente – not a unilateral promise to sell), plus 3 additional months to complete the sale.
• Appeals against all judgments rendered at the orientation hearing are subject to the expedited procedure (procédure à jour fixe).
• Registered creditors (créanciers inscrits), including those who have not declared their claim in the proceedings, must always be joined as respondents under the principle of indivisibility of litigation.
• The Cour de cassation does not merely hold that appeals against the orientation judgment are formed, examined and decided under the expedited procedure, but that all judgments rendered at the orientation hearing fall under this procedure (Cass. civ., 2e, 25 Sept. 2014, No. 13-19.000, published in the Bulletin).

I. General Rules

A. Applicable legislation

Foreclosure proceedings were reformed by Ordinance No. 2006-461 of 21 April 2006 and its implementing Decree No. 2006-936 of 27 July 2006, as amended by Decrees No. 2006-805 of 23 December 2006 and No. 2009-160 of 12 February 2009.

Articles 1 to 42 of Law No. 91-650 of 9 July 1991 reforming civil enforcement procedures and Articles 1 to 54 of its implementing Decree No. 92-755 of 31 July 1992 apply to foreclosure, unless otherwise provided.

The Code of Civil Enforcement Procedures (Code des procédures civiles d’execution, hereinafter “CPCE”), in force since 1 June 2012, incorporates virtually all of the content of the earlier decrees at Articles L. 311-1 to L. 341-1 and R. 311-1 to R. 334-4.

Circular No. 03-09 C3 of 20 March 2009, on the presentation of provisions relating to foreclosure, distribution of proceeds and sale of property belonging to persons subject to insolvency proceedings, provides useful guidance on court registry practices.

Furthermore, the National Internal Rules of the Legal Profession (Reglement interieur national, “RIN”) devotes its Article 12 to the ethics and practice of lawyers in the area of court-ordered sales. Article 12.1 requires lawyers to use the standard clauses annexed to the regulation, setting out general provisions applicable to court-ordered sales on foreclosure, partition and insolvency.

The general provisions of the conditions of sale (cahier des conditions de vente) had no normative value until recently. Despite the provisions of Article 38-1 of Decree No. 91-1197 of 27 November 1991 organising the legal profession, the National Bar Council (Conseil national des barreaux, “CNB”) had failed to notify the Minister of Justice of the decision annexing the standard general provisions for court-ordered sales, thus preventing their publication in the Official Gazette.

The Cour de cassation accordingly held that they had no normative force and that their violation could not give rise to cassation (Cass. civ., 2e, 25 Sept. 2014, No. 13-15.597).

This omission was corrected upon the publication in the Official Gazette on 7 March 2019 of the Decision of 13 February 2019 reforming the RIN.

B. Procedural rules

1. The proceedings as an “instance”

Traditionally, enforcement proceedings, which oppose a creditor to a debtor rather than a claimant to a defendant, are not considered litigation proceedings (instances) and therefore cannot be subject to lapse of proceedings (peremption d’instance) (Cass. civ., 2e, 24 March 2005, No. 03-16.312, published in the Bulletin).

However, the Cour de cassation’s terminology can be confusing, as it regularly uses the term “instance” in foreclosure matters – for example, regarding interruption of limitation periods: “Having recalled that under Article 2242 of the Civil Code, the interruption of limitation resulting from a legal action produces its effects until the extinction of the proceedings, the Court of Appeal correctly held that the proceedings initiated by the seizure of the enforcement judge, which gave rise to the orientation judgment of 17 December 2009, only became extinct upon the order approving the distribution plan of the sale proceeds on 31 October 2012, and correctly deduced that the action for attachment of wages commenced on 24 October 2013 was admissible” (Cass. civ., 2e, 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 lapse (Cass. civ., 2e, 6 Feb. 1991, No. 89-21.371, published in the Bulletin).

2. Discontinuance

The creditor’s discontinuance divests the enforcement judge of jurisdiction to rule on challenges raised in connection with foreclosure proceedings and on counterclaims arising from or relating to those proceedings (Cass. civ., 2e, 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 perfected upon acceptance by the defendant (Article 395 of the Code of Civil Procedure).

The Cour de cassation rejected this reasoning, establishing the rule that the disappearance of the enforcement measure resulting from the claimant’s discontinuance renders the judge incompetent to hear counterclaims.

C. Jurisdictional rules

1. Jurisdiction of the enforcement judge

a) Subject-matter jurisdiction

The subject-matter jurisdiction of the enforcement judge (juge de l’exécution, “JEX”) derives from the third paragraph of Article L. 213-6 of the Code of Judicial Organisation: “The enforcement judge has jurisdiction, subject to the same reservation, over foreclosure proceedings, challenges arising in connection therewith and claims arising from or directly relating to those proceedings, even where they concern substantive rights, as well as the distribution proceedings flowing therefrom.”

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 “challenges arising in connection therewith and claims arising from or directly relating to those proceedings, even where they concern substantive rights” notably enables the enforcement judge to resolve difficulties relating to the enforcement of notarial deeds. Since enforcement of an authentic instrument without prior referral to a court on the merits means that all challenges to its validity remain admissible before the enforcement judge.

However, the question submitted to the enforcement judge must arise in connection with enforcement, failing which it falls within the jurisdiction of the court on the merits. It has been held that, not constituting a challenge to the foreclosure, a claim for damages against the creditor does not fall within the enforcement judge’s jurisdiction (Cass. civ., 2e, 25 Sept. 2014, No. 13-20.561, published in the Bulletin; Cass. civ., 2e, 22 June 2017, No. 15-24.385).

Finally, the enforcement judge has jurisdiction from the service of the payment order constituting seizure (commandement de payer valant saisie immobilière) – well before the case is registered, which occurs when the summons to the orientation hearing is filed with the court registry.

Article R. 321-1, first paragraph, CPCE provides: “Pursuant to Article L. 321-1, enforcement proceedings are commenced by service on the debtor or third-party possessor of a payment order constituting seizure at the request of the pursuing creditor.”

b) Territorial jurisdiction

Territorial jurisdiction is governed by Articles R. 311-2 and R. 311-3 CPCE.

Article R. 311-2 provides: “Foreclosure is pursued before the enforcement judge of the judicial court in whose territorial jurisdiction the seized property is located.”

Article R. 311-3 provides: “Where a creditor has simultaneously seized several properties of the same debtor located in the jurisdictions of several judicial courts, proceedings are brought before the enforcement judge of the court in whose jurisdiction the seized property where the debtor resides is located; failing that, before the judge in whose jurisdiction any one of the properties is situated.”

Where multiple properties are involved, the creditor must first bring proceedings before the court of the debtor’s place of residence; and in the absence of such a correspondence between property and debtor’s residence, the creditor may bring proceedings before the judicial court of their choice.

c) The court registry

Article R. 212-17 of the Code of Judicial Organisation provides that the enforcement judge’s registry is that of the judicial court.

In practice, the enforcement judge’s registry is particularly accessible. The legislation provides that lawyers carry out numerous procedural steps there, and that auction candidates may consult the conditions of sale.

2. The lawyer’s role and jurisdiction

a) Subject-matter jurisdiction

Article R. 311-4 CPCE provides: “The parties are, unless otherwise provided, required to retain a lawyer.”

The “otherwise provided” exception derives notably from Article R. 322-17: “The debtor’s application for authorisation to sell the property by private treaty and acts consequent upon such sale are exempt from the requirement of legal representation. This application may be made orally at the orientation hearing.”

b) Territorial jurisdiction

There is no multi-postulation (multipostulation) in foreclosure proceedings.

The Macron Law No. 2015-990 of 6 August 2015, which introduced multi-postulation, made an exception for foreclosure, partition and auction proceedings, for which “lawyers may not appear before any court other than that where their professional office is established” (Article 5, paragraph 2 of Law No. 71-1130 of 31 December 1971).

D. Land Registry requirements

Most procedural documents will be published in the Land Registry (fichier immobilier) maintained by the Land Publicity Service (service de la publicité foncière). They must therefore comply with the requirements of Decrees No. 55-22 of 4 January 1955 and No. 55-1350 of 14 October 1955 regarding the identification of legal entities, natural persons and properties.

1. Identification of persons

a) Natural persons

Article 5, paragraph 1, of Decree No. 55-22 of 4 January 1955 provides: “Any deed or judicial decision subject to publication in a land publicity service must contain the surname, given names in the order shown on the civil status certificate, domicile, date and place of birth and profession of the parties, as well as the name of their spouse.”

The surname, given names in civil status order, date and place of birth and spouse’s name appear on the extract of the birth certificate. The profession will most likely be mentioned in the last deed published in the Land Registry.

b) Legal entities

Article 6 of Decree No. 55-22 of 4 January 1955 provides: “1. Any deed or judicial decision subject to publication in a land publicity service must contain the following identification elements for legal entities:

1. Name;

2. Legal form and registered office. For associations and trade unions, the deed or decision must also include the date and place of their declaration or filing of articles of association;

3. Where the legal entity is registered in the directory provided for in Article R. 123-220 of the Commercial Code, the identification number assigned to it, supplemented, if it is required to be registered in the commercial register, by the mention ‘RCS’ followed by the name of the city where the registry in which it is registered is located.

In addition, the surname, given names and domicile of the representative(s) of the legal entity must be indicated.”

The surname, given names and domicile of the legal entity’s representative(s) appear on the company register extract (extrait Kbis).

The date and place of declaration or filing of articles of association for associations and trade unions may be consulted in the Official Gazette of Associations and Corporate Foundations (JOAFE).

2. Identification of properties

Property identification requires not only a physical description but also a mention of the chain of title (effet relatif) and the division statement (etat descriptif de division) together with any amendments thereto.

a) Property description

Article 7 of Decree No. 55-22 of 4 January 1955 provides at paragraphs 1 and 3: “Any deed or judicial decision subject to publication in a land publicity service must indicate, for each property concerned, the nature, location, area and cadastral designation (section, plan number and place-name). In built-up areas of urban municipalities, the place-name is replaced by the street and number.

[…]

Where, without effecting or establishing a division of land ownership involving a change of boundary, the deed concerns only one or more fractions of a property, it must include both the designation of such fractions and that of the whole property. The designation of the fraction is made in accordance with a division statement, or, where applicable, an amending statement, drawn up in the conditions fixed by decree and previously published; it must mention the lot number in which the fraction is included, and, subject to exceptions provided by said decree, the proportionate share of land ownership attributable to that lot.”

Accordingly, the seized property must be identified by stating:

• Its nature (description),
• Its location (address),
• The area of the plot or plots on which it stands,
• Its cadastral designation (section, plan number, place-name or address).

If the seized property is a co-ownership lot (lot de copropriete), the following must be added:

• Its description (in addition to the property description),
• Its lot number,
• Its proportionate share (tantiemes).

And additionally, in terms of cadastral designation:

• Its volumetric division lot number.

Important: Article 7 does not mention the volumetric division lot number, even though it is an indispensable element for identifying the property when one exists.

The volumetric division lot allows multiple vertically interrelated housing units to be distinguished where no common areas exist.

Article 1 of Law No. 65-557 of 10 July 1965, establishing the rules of co-ownership of buildings, defines co-ownership through the concept of distribution of ownership (paragraph 1) and common areas (paragraph 2): “This law governs any built property or group of built properties whose ownership is distributed among several persons by lots. A co-ownership lot necessarily comprises a private area and a share of common areas, which are inseparable.”

It happens that two buildings are vertically interrelated without common areas – for example, where a cellar extends beneath a neighbouring property. Any shared floor will not constitute a common area and may be treated under the rules of party walls (mitoyennete) for maintenance and volumetric division for identification purposes.

b) Chain of title (effet relatif)

Any deed recording a transfer of ownership must mention the chain of title – that is, the instrument by which the seized debtor became owner of the seized property (sale, gift, inheritance, etc.) – together with its publication references, in accordance with Article 32 of Decree No. 55-1350 of 14 October 1955.

Failure to mention the chain of title results in rejection of publication under Article 33 of the same decree.

A deed which “was not drawn up or rendered with the cooperation or at the request of the last holder of the right and, in particular, in the case of seizure, legal proceedings, […]” (Article 36.1 of the same decree) need not mention the chain of title. This means that the payment order constituting seizure, the summons to the orientation hearing and the notification to registered creditors need not mention the chain of title, but it must be mentioned in the conditions of sale.

The conditions of sale become the title of sale when the registry annexes to it the receipt for payment of assessed costs, the adjudication judgment and the enforcement formula (Article R. 322-61 CPCE). Since the chain of title will not be reproduced in the adjudication judgment, whose content is precisely defined at Article R. 322-59 CPCE, it falls to the lawyer, when preparing the future title of sale – i.e. when drafting the conditions of sale – to incorporate this information into the deed.

c) The division statement and its amendments

Where a deed concerns a fraction of a property (i.e. a co-ownership lot), it must reference the division statement and any amendments thereto, together with their publication references. The chain of title describes the property but not its evolution over time, which results from amendments to the division statement. The mention of the division statement and amendments thus describes the property’s history after the transfer of ownership.

A typical example: a co-owner who has appropriated the building’s attic space with their neighbours’ consent. The division statement will be updated to reflect the new composition of their lot and corresponding proportionate shares. The description in the original deed of sale becomes obsolete, which is why subsequent transfer deeds must reference the division statement and its amendments.

3. Scope of verification

When publication in the Land Registry is required, the Land Publicity Service verifies compliance with Articles 5, 6 and 7 of Decree No. 55-22 of 4 January 1955.

However, the scope of this verification was limited by Law No. 98-261 of 6 April 1998 and its implementing Decree No. 98-553 of 3 July 1998. Since then, for natural persons, the service verifies only: surname, first two given names, date and place of birth. For legal entities, since the second publication after 1 July 1998, the “RCS” mention and city of registration are no longer required by the Land Publicity Service, although they continue to be included in deeds under general procedural rules.

In practice, the Land Publicity Service does not penalise the absence of mention of the legal entity’s representative(s).

II. Preparation of the Proceedings

The conditions precedent are defined at Articles L. 311-1 to L. 311-8 CPCE. The following are required:

• A pursuing creditor,
• A seized debtor,
• An enforceable title (titre exécutoire),
• A debt that is liquid and due (liquide et exigible),
• A property to seize.

A. The pursuing creditor

Any natural or legal person may commence foreclosure proceedings, provided they have capacity to sue. Article L. 111-7 CPCE provides: “The creditor has the choice of measures to ensure enforcement or preservation of their claim. Enforcement of these measures may not exceed what is necessary to obtain payment of the obligation.”

A condominium association (syndicat des coproprietaires) may commence foreclosure, but the property manager (syndic) must act pursuant to a resolution of the general meeting authorising the sale at public auction and fixing the reserve price. Lack of authorisation constitutes an inadmissibility objection (fin de non-recevoir) within the meaning of Article 122 of the Code of Civil Procedure, and can be remedied during proceedings.

The creditor is subject to two limitations under Article L. 311-5 CPCE: “A creditor who has seized a property of their debtor may not commence new proceedings on another property of that debtor except where the first property is insufficient. The creditor may not seize property that is not encumbered by a mortgage in their favour except where the existing mortgage does not allow them to be fully satisfied.”

B. The seized debtor

1. Identifying the seized debtor

a) Natural persons

Identifying a debtor who is a natural person requires mentioning, in documents to be published in the Land Registry: their first two given names, surname, date and place of birth, address and profession.

The lawyer should also consult the debtor’s birth certificate to determine their marital status and, where applicable, their matrimonial property regime.

Article L. 311-7 CPCE provides: “Seizure of community property (immeubles communs) is pursued against both spouses.”

Article R. 321-1, paragraph 3, CPCE adds: “Where property belonging exclusively to one spouse constitutes the family home, the payment order is notified to their spouse no later than the first business day following service of the order.”

Marital status is noted in the margin of the birth certificate. In practice, discrepancies can exist between entries on the marriage certificate and those on the birth certificate, so it is recommended to systematically obtain both for each spouse.

For foreign nationals, systematically enquire of: the Central Civil Status Service (Nantes), the consulate or embassy of the country of origin, and the municipality of birth.

Finally, check the BODACC to verify the absence of insolvency proceedings against the seized debtor.

b) Legal entities

(1) Companies

The company register extract (extrait Kbis) contains all information necessary to identify a legal entity. Also check the BODACC for any insolvency proceedings. The opening of insolvency proceedings stays or prohibits all enforcement (Article L. 622-21, Commercial Code).

(2) Craftsmen (artisans)

Craftsmen are registered with the trades directory (repertoire des metiers) of the Chamber of Trades. These are independent of one another and their administrative practices vary considerably.

(3) Associations

Associations with legal personality are registered in the Official Gazette of Associations (JOAFE). The articles may be obtained from the Prefecture.

2. The debtor’s situation

a) Over-indebtedness (surendettement)

The admissibility decision of the Over-indebtedness Commission automatically stays enforcement proceedings (Article L. 722-2, Consumer Code). The stay does not affect the effects of the payment order, but income received afterwards becomes available again.

If the admissibility decision post-dates an orientation judgment ordering forced sale, postponement of the auction is not automatic. The Commission may apply to the foreclosure judge for postponement “for serious and duly justified reasons” (Articles L. 722-4 and L. 722-7, Consumer Code; Article R. 322-28 CPCE).

b) Insolvency proceedings (liquidation judiciaire)

The opening of insolvency proceedings stays or prohibits all enforcement (Article L. 622-21, Commercial Code). Two scenarios:

• Insolvency opened before foreclosure: the liquidator pursues the sale under insolvency-specific rules (not covered here).
• Insolvency opened during pending foreclosure: proceedings are suspended and may be resumed by the liquidator on the existing conditions of sale. The procedure continues “in the state it was in on the date of the opening judgment” (Civ. 2e, 7 June 2012, No. 11-18.426).

c) Minors and adults under guardianship or curatorship

Property of minors and adults under curatorship or tutorship may be seized, subject to prior discussion of their moveable assets (Article L. 311-8 CPCE).

d) Deceased debtor with known heirs

Proceedings may be continued against heirs under Article 877 of the Civil Code: “An enforceable title against the deceased is also enforceable against the heir, eight days after service on them.” The creditor may summon the heir to decide within statutory time limits (Articles 771-772, Civil Code).

e) Deceased debtor with unknown heirs

Where the succession is vacant (Article 809, Civil Code), the creditor applies by petition for appointment of the State Property Administration as curator of the vacant succession.

C. The enforceable title (titre exécutoire)

Article L. 111-3 CPCE lists enforceable titles: court decisions with executory force, foreign judgments declared enforceable, conciliation extracts, notarial deeds with enforcement formula, divorce agreements filed with a notary, instruments issued by enforcement officers, and administrative titles.

1. The interim order (ordonnance de refere)

An interim order allows commencement of proceedings on a conservatory basis but does not permit forced sale until a final judgment is obtained (Article L. 311-4, paragraph 1, CPCE). A private sale may, however, be authorised.

2. Judgments and appellate decisions

A judgment enforceable provisionally allows commencement of proceedings but not forced sale. A certificate of non-appeal or non-cassation must be produced. No proceedings may be commenced on a default judgment while the opposition period has not elapsed.

3. Authentic instruments (actes authentiques)

Where the enforceable title is a notarial deed, it will not predetermine the amount of the debt but will contain all elements allowing its assessment (Article L. 111-6 CPCE). The most common scenario concerns banks enforcing mortgage loans: the debt becomes liquid upon acceleration (decheance du terme). Unless there is an express contractual stipulation to the contrary, acceleration must be preceded by a formal demand (Civ. 1re, 3 June 2015, No. 14-15.655; Cass. 1re civ., 11 Jan. 2023, No. 21-21.590).

D. The seized property

Article L. 311-6 CPCE provides: “Unless otherwise provided by statute, foreclosure may relate to all rights in rem in immoveable property, including their accessories deemed immoveable, capable of being transferred.”

Article L. 321-3 adds: “Seizure of a property operates seizure of its fruits, save for the effect of a prior seizure.”

1. Identifying the property

The property must be identified by its nature, location, plot area, and cadastral designation. For co-ownership lots, also the lot number and proportionate shares. Cadastral references in the title of ownership may be outdated; the property file from the Land Registry provides current references.

2. Seizability

The most common exception concerns the declaration of unseizability under Article L. 526-1 of the Commercial Code, available to registered sole traders regarding their principal residence and non-professional real property.

E. Summary of documents to collect

The preparation requires collecting documents relating to the parties (birth certificates, Kbis extracts, marriage certificates), the enforceable title (certificates of non-appeal, formal demands, acceleration letters), and the property (property files, titles of ownership, division statements, cadastral extracts, planning certificates).

III. Proceedings up to the Orientation Hearing

A. The payment order constituting seizure

1. Required content

The order must include standard enforcement officer mentions (Article 648, Code of Civil Procedure) and specific mentions under Article R. 321-3 CPCE: lawyer’s constitution, enforceable title details, itemised claim, 8-day warning, property designation, notice of seizure and unavailability, notice of fruit seizure, notice of right to private sale, tenant identification request, notice of entry for inspection, competent court, legal aid notice, and over-indebtedness notice.

These are prescribed on pain of nullity (requiring proof of prejudice). An error in amounts claimed is never grounds for nullity.

2. Service

Service of the order is an act of disposition at the creditor’s risk (Article R. 321-1, paragraph 2, CPCE). In the absence of bids, the pursuing creditor becomes purchaser at the reserve price.

Service depends on the debtor’s situation:

• Co-debtors: served on each.
• Married debtor under community regime: served on both spouses.
• Married debtor under separation regime with family home: served on debtor spouse, notified to other spouse by first business day following service (on pain of lapse).
• Unmarried partner: no notification required.
• Deceased debtor with known heirs: Article 877 of the Civil Code applies.
• Third-party purchaser (tiers acquereur): a payment order is served on the principal debtor, and a payment order constituting seizure on the third-party purchaser with extended options (pay, purge, or submit).
• Mortgage guarantor (caution hypothecaire): the payment period is extended to one month.

For multiple properties in different Land Publicity Service jurisdictions, a separate order is required for each (Article R. 321-2 CPCE).

3. Publication

The order must be published within 2 months of service, on pain of lapse (Article R. 321-6 CPCE). If rejected, the period is extended by the number of days between filing and regularisation. Cost: EUR 15 publication + EUR 12 per lot for the property file + EUR 2 postage.

If a prior order is already published and not cancelled, no new order for the same property can be published. The prior order must first be cancelled.

4. Effects

From service on the debtor: the property is unavailable, fruits are seized, and the debtor’s administration rights are restricted. From publication: the same effects apply to third parties.

• Acts of disposition are null (Article L. 321-2 CPCE).
• Leases are unenforceable against the purchaser, though a lease known to the purchaser before the auction remains enforceable (Cass. civ., 2e, 27 Feb. 2020, No. 18-19.174).
• The debtor is custodian and may not diminish value.
• The creditor may oppose payment of rents to the debtor and require sequestration.

5. Duration of effects

The order lapses after 5 years if no judgment recording the sale has been noted in the margin (Article R. 321-20 CPCE). The lapse period may be suspended or extended by publication of a judicial decision ordering suspension, postponement, extension or re-auction. Lapse retroactively nullifies all subsequent procedural acts.

B. Application for private sale before the orientation hearing

The debtor may apply for a private sale before the summons is served, provided registered creditors are joined (Article R. 322-20 CPCE). The judgment suspends proceedings but the creditor must continue procedural steps to avoid lapse.

C. The property inspection report

After 8 days from service and absent payment, the enforcement officer may enter the premises (Article R. 322-1 CPCE). The report must include a description, area measurement (Carrez), occupancy conditions, condominium property manager details, and other useful information. In practice, the technical diagnostic file is usually prepared simultaneously.

D. The summons to the orientation hearing

The summons must be served within 2 months of publication (on pain of lapse), with the hearing set between 1 and 3 months from service (only the 3-month maximum triggers lapse). Required content includes hearing details, purpose, warning of default consequences, direction to consult conditions of sale, reserve price and right to challenge it, right to request private sale, and warning about submission deadlines (Article R. 322-5 CPCE).

E. Notification to registered creditors

Must be served within 5 business days of the summons (on pain of lapse). The notification constitutes a summons to the orientation hearing. Required content includes hearing details, direction to declare claims with title and registration form, and reproduction of key articles (Article R. 322-7 CPCE).

F. Publication of the summons and notifications

Mention of service is made in the Land Registry margin within 8 days of the last service (Article R. 322-9 CPCE). From that mention, the registration can only be cancelled by consent of all registered creditors or by an enforceable judgment.

G. The conditions of sale

Filed within 5 business days of the summons (on pain of lapse). Must contain: enforceable title, claim breakdown, payment order details, property designation with chain of title and encumbrances, sale conditions and reserve price, and sequestrator designation. The general conditions annexed to the RIN have normative force since 7 March 2019.

H. Declarations of claim

Registered creditors declared before publication of the order have 2 months from notification. Those registering after publication have 1 month from their registration. Late declaration results in loss of preferential ranking but not exclusion from distribution. Challenges to declarations follow the general time limits (at the orientation hearing, or within 15 days if subsequent).

IV. Orientation and Incident Hearings

A. Common rules

1. The enforcement judge

The judge verifies that conditions are met (liquid/due debt, enforceable title, rights in rem), rules on challenges, determines sale modalities, and must raise consumer protection violations of its own motion (including unfair terms: CJEU C-693/19; Cass. 2e civ., 13 April 2023, No. 21-14.540).

2. Mandatory representation

All parties must retain a lawyer of the local bar. The sole exception is the debtor’s private sale application, which may be made orally without a lawyer (Article R. 322-17 CPCE).

B. The orientation hearing

The judge hears parties, verifies conditions, rules on challenges, and either authorises private sale or orders forced sale (Article R. 322-15 CPCE).

Common challenges include: private sale applications, over-indebtedness suspension, proportionality, apportionment (cantonnement), conversion to judicial mortgage, challenging the reserve price for manifest insufficiency, and grace periods.

The orientation judgment

The judgment purges all prior challenges (Article R. 311-5 CPCE). It mentions the claim amount with res judicata authority (Cass. avis, 12 April 2018, No. P 18-70.004).

• Authorising private sale: fixes minimum price, recalls within 4 months (extensible by 3 months), suspends proceedings.
• Ordering forced sale: fixes auction date between 2 and 4 months, determines inspection modalities.

C. Incident hearings

Challenges to acts subsequent to the orientation judgment must be filed within 15 days. The registry convenes parties by registered letter within 15 days of filing. Incident judgments are served by the parties (except lapse/expiry decisions notified by the registry).

D. Claims at any time

Third-party claim (distraction): may be filed until the sale (Article R. 311-8 CPCE).

Subrogation: registered creditors may be subrogated in the pursuing creditor’s rights in case of discontinuance, negligence, fraud or delay (Article R. 311-9 CPCE).

E. Appeals

1. Common rules: indivisibility

Any appeal must be brought against all parties including registered creditors who have not declared their claim (Cass. 2e civ., 21 Feb. 2019, No. 17-31.350; Cass. civ., 2e, 2 Dec. 2021, No. 20-15.274). This applies to opposition as well.

2. Appeal procedure

Appeal period: 15 days from notification. No suspensive effect; a stay may be sought from the First President (Article R. 121-22 CPCE).

• Orientation judgment: expedited procedure (jour fixe). Petition for hearing date filed before or within 8 days of appeal. Respondent summoned with copies of petition, order and appeal declaration.
• Incident judgments: expedited procedure under Article 905 CPC. Serve appeal within 10 days of scheduling notice; file submissions within 1 month.

V. Forced Sale

Three types: sale by mutual agreement (gre a gre), private sale (vente amiable), and sale by auction (adjudication).

A. Sale by mutual agreement

Available between orientation toward forced sale and opening of bidding, with agreement of all parties (Article L. 322-1, paragraph 2, CPCE). Poorly codified and rarely used.

B. Private sale

1. Conclusion

The debtor carries out all necessary steps. The notarial deed is only drawn up upon consignment of the price and payment of costs (Article L. 322-4 CPCE).

2. Effects

Produces the effects of a voluntary sale; no rescission for lesion (Article L. 322-3 CPCE). Payment purges all mortgages from publication of the title (Article L. 322-14 CPCE).

3. Judicial supervision

At the recall hearing (4 months, extensible by 3), the judge verifies conformity with conditions, consignment of price, and payment of costs. If satisfied, records the sale and orders cancellation of registrations (not appealable). If not, orders forced sale.

4. Creditor’s failure allegation

The creditor may summon the debtor at any time to establish failure and resume forced sale (Article R. 322-22 CPCE). The resumption decision is not appealable.

C. Sale by auction

1. Advertising

Between 2 months and 1 month before the auction (on pain of lapse):

• Detailed notice: filed at registry for display, published in legal gazette.
• Simplified notice: posted on property, published in two local newspapers.
• Filing of all advertisements and posting report at registry.

The judge may order additional or modified advertising on petition.

2. Notification to third parties

• Tenant/occupant in good faith: registered letter at least 1 month before (where sale follows initial division into lots).
• Agricultural tenant: 20 days, by the registry.
• SAFER: 20 days, by the registry.
• Public authorities: 30 days (declaration of intent to sell).

3. Property inspection

Arranged as determined in the orientation judgment, usually with an enforcement officer and, if necessary, police and a locksmith.

4. Assessment of costs

Assessed by the judge and announced before bidding opens (Article R. 322-42 CPCE). Nothing beyond the assessed amount may be claimed.

5. The auction hearing

a) Postponement

Only for force majeure or on the over-indebtedness commission’s request. Written request required on pain of lapse.

b) Bidder requirements

Any person may bid subject to capacity and absence of prohibitions. A bank guarantee or cashier’s cheque for 10% of the reserve (minimum EUR 3,000) and a non-conviction attestation are required. Bids are made through a lawyer of the local bar (one mandate per lawyer).

c) Conduct of bidding

The judge announces the reserve. Each bid must exceed the previous one. After 90 seconds without a bid, the last bid constitutes the adjudication. In the absence of bids, the pursuing creditor becomes purchaser at the reserve.

d) Declaration of purchaser

Before the hearing ends, the successful bidder’s lawyer declares their client’s identity to the registry and submits the non-conviction attestation. Completion within 3 business days if incomplete.

6. Overbidding (surenchere)

Any person may overbid by at least 10% within 10 days. Irrevocable. Must be notified within 3 business days. The overbid hearing follows the same procedure. No further overbid is permitted on the second adjudication.

7. Pre-emption and substitution

• Tenant/occupant: 1 month from notification by the registry.
• Agricultural tenant: 20 days.
• SAFER: 20 days.
• Public authorities: 30 days.

8. Effects of adjudication

• Transfer of ownership: immediate as regards the debtor; from publication as regards third parties.
• Title of eviction: against the debtor and occupants without enforceable rights, from payment of price and costs.
• Purging of registrations: payment purges all mortgages from publication of the title of sale.
• No recourse: the purchaser has no recourse regarding the property’s condition, defects, leases, pre-emption rights or encumbrances.

9. Payment

• Price: within 2 months, to the sequestrator. Interest applies thereafter; +5 points after 4 months.
• Costs and fees: paid in priority, in addition to the price. Proportional fee (7.256% to 1.497% depending on bracket) shared 3/4 to pursuing creditor’s lawyer, 1/4 to purchaser’s lawyer.
• Transfer taxes: approximately 5.80% of sale price, payable within 1 month.

10. The adjudication judgment and title of sale

The judgment references all procedural acts, identifies the purchaser, states the price and costs. Only appealable if it decides a challenge. The title of sale (authenticated copy of conditions of sale + judgment transcript) is delivered on proof of payment of assessed costs.

11. Notifications

The judgment is notified to all parties including registered creditors. The condominium property manager and any association syndicale libre president must be notified within 15 days. The judgment is published in the Land Registry margin.

12. Defaulting purchaser

The sale is resolved by operation of law if the purchaser fails to pay (Article L. 322-12 CPCE). The defaulting purchaser pays any price difference, retains no right to reimbursement, and bears the initial assessed costs plus interest.

13. Re-auction (reiteration des encheres)

The interested party obtains a certificate of non-payment from the registry, serves it with an 8-day demand, then applies for a new auction date (2-4 months). Advertising is repeated. In re-auction, the pursuing creditor’s lawyer receives the full proportional fee (Article A. 444-191, III, Commercial Code).