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The primary objective of the payment order procedure is to surprise. First we condemn, then we discuss. Eventually. Because very often, the discussion does not begin until an enforcement order is issued, such as a summons to pay for the purposes of seizure and sale. At that point, the surprise effect reaches its climax, and the litigant wonders: can the debt really be seized without having received the court decision condemning him and without having been able to explain himself?
Proof of prior service
In accordance with theArticle 503 of the Code of Civil ProcedureJudgments must be notified before they can be enforced.
In the case of an order on application, compliance with the principle of contradiction requires, on the one hand, that a copy of the application and the order be given to the person against whom it is opposed prior to the enforcement of the measures it orders. It also requires that the order cannot be enforced against that person until he has been notified.
Before contesting an order for seizure and sale, it is not always possible to know whether the bailiff has duly served the debtor with the order to pay that he is seeking to enforce. To check this, you need to initiate proceedings and ask the creditor to provide proof:
- that he served the simple payment order a first time in order to start the clock ticking. opposition period,
- then served the enforceable order to pay a second time before taking legal action.
On the creditor's side, proof of this double formality is not necessarily easy.
The older the order for payment, the greater the risk of service documents being lost. If, in addition, the claim established by the order for payment has been the subject of one or more assignments to other creditors, the risk is even greater. Archiving and destroying old service documents makes it impossible to produce them in court.
Simplified proof for simple payment orders
Case law does the distraining creditor a favour by exempting him from having to produce the record of service of the simple order for payment (in other words, still subject to opposition by the convicted debtor, as opposed to the "enforceable" order for payment which can no longer be contested on the merits). (In other words, the order is still subject to opposition by the convicted debtor, as opposed to an "enforceable" order to pay, which can no longer be contested on the merits.)
In fact, it is presumed that the court clerk has necessarily verified the existence of this formality of prior service before affixing the enforcement formula and making the order for payment enforceable.
In a ruling handed down on 12 July 2012, the Second Civil Chamber of the Court of Cassation held that, in " affixing the executory clause, the registrar of the court of first instance noted that the order for payment had been served (...); it does not appear from any element of the proceedings that this indication had been made in an erroneous manner (...) " (Cass. Civ. 2nd, 12 July 2012, appeal no. 11-13.305)
A creditor acting on the basis of an order for payment can therefore have a summons issued for the purposes of seizure for sale without having to prove the existence of a document serving a "simple" order for payment.
Does this evidential advantage go so far as to exempt him from any need to prove service of the order for payment, even when it has become enforceable?
Proof required for an enforceable order for payment
In one of its cases, SOLENT AVOCATS was confronted with a situation where the distraining creditor did not provide proof of either of the two prior notifications of the order for payment.
In his report on the seizure and his statement of claim, the bailiff merely stated lapidarily that the service of the document was ". previously The document was "served", without mentioning any date or specifying what service was involved, whether before or after the enforcement formula was affixed.
The creditor was required to produce this evidence, but nevertheless refrained from doing so. if the executory clause has been affixed, this means that we have served the document. No need to justify it" .
By analogy with a recent decision of the Court of Cassation (Cass. Civ. 1eraAppeal no. 21-10.229, 30 June 2022), we have chosen to point out that if the distraining creditor was not exempted from proving service of a first instance judgment on the sole ground that the appeal judgment had indeed been served, the same rules should apply to a creditor acting on the basis of an enforceable order for payment. There is no question of his benefiting from a double presumption, which would amount to denying the provisions of the aforementioned article 503.
We were followed by the enforcement judge, who found in his decision to annul the seizure that the creditor had not proved that he had a enforcement order required by Article L. 211-1 of the Code of Civil Enforcement Procedures.
Note: Although the creditor is exempt from proving service of the simple order for payment, he must prove service of the enforceable order for payment.
For any question relating to enforcement procedures or for a expert support in debt collectionSOLENT AVOCATS is at your disposal.
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