You are consulting a text devoted to a practical analysis of the methods that legal professionals can use to organise their clients' defence in property seizure proceedings. This text is an extract from our training material, which is organised not in the form of a bible of resources, but as a chronological thread that enables the trainer to detail each stage of the procedure, while presenting the angles of attack available to the lawyer.
Last updated on 21 May 2024.
The lawyer's involvement in the defence of foreclosure leads us toFirst of all, the notion of defence needs to be examined. It is possible to intervene, not only on behalf of the distrainee debtor, as we might think at first sight, but also on behalf of other parties to the proceedings who are likely to oppose the claims of the creditor(s): essentially the tenant and third parties to the proceedings.
On a practical level, as the organisation of the client's defence follows the chronology of the procedure, this course material will follow the same plan and progress from the preparation of the case to the sale and its aftermath.
Some of the content has been taken from a training course on property seizure proceedings, which has been shortened to meet the specific needs of lawyers acting in their defence.
Lastly, because of the specific nature of the procedure, the preamble sets out the general rules of civil enforcement proceedings on the one hand, and the rules of property seizure proceedings on the other, which are of interest to the lawyer acting in defence.
The jurisdiction of the enforcement judge results from the third paragraph of Article L. 213-6 of the Code of Judicial Organisation: "The enforcement judge has jurisdiction, subject to the same proviso, over the seizure of property procedure, disputes arising in connection therewith and claims arising from or directly related to this procedure, even if they concern the substance of the law, as well as the distribution procedure arising therefrom.
The duties of the enforcement judge are performed by the president of the judicial court, subject to delegation (article L. 213-5 of the Code of Judicial Organisation).
The body of a sentence "In the event of a dispute arising in the course of the proceedings, and in respect of claims arising from or directly related to the proceedings, even if they concern the substance of the law " allows the enforcement judge to purge difficulties relating to the enforcement of notarial deeds. The fact that a notarial deed can be enforced without first being referred to a judge on the merits means that all disputes relating to its validity remain admissible before the enforcement judge.
The question submitted to the enforcement judge must nevertheless arise during the forced execution, failing which it will fall within the jurisdiction of the court hearing the case on the merits. For example, it has been held that an application to order the creditor to pay damages does not fall within the jurisdiction of the enforcement judge because it does not constitute a challenge to the seizure of the property (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. civ. 2nd, 18 May 2022, no. 20-22.111).
Lastly, the enforcement judge has jurisdiction from the date of issue of the summons to pay for the seizure of property, i.e. well before the case is registered when the summons to attend the orientation hearing is filed with the clerk of the auction registry.
The first paragraph of Article R. 321-1 of the Code of Civil Enforcement Procedures states that "Pursuant to Article L. 321-1, enforcement proceedings are initiated by serving a summons to pay on the debtor or the third party holder at the request of the pursuing creditor.
Article L. 213-6 of the Code of Judicial Organisation :
"The enforcement judge has exclusive jurisdiction over difficulties relating to enforceable titles and disputes arising in connection with enforcement, even if they concern the substance of the law, unless they fall outside the jurisdiction of the courts.
Under the same conditions, it authorises precautionary measures and hears disputes relating to their implementation.
The enforcement judge has jurisdiction, subject to the same reservation, over the seizure of property procedure, disputes arising in connection therewith and claims arising from or directly related to this procedure, even if they relate to the substance of the law, as well as the resulting distribution procedure.
Subject to the same proviso, it hears claims for compensation based on the wrongful execution or non-execution of enforcement measures or precautionary measures.
The enforcement judge shall also exercise the specific powers conferred on him by the Code of Civil Enforcement Procedures.
In the case of seizures of immovable property, the enforcement judge is responsible for :
In practice, there are two possible scenarios:
Article R. 322-15, paragraph 1, of the Code of Civil Enforcement Procedures :
"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 have been met, rules on any disputes and incidental claims and determines how the proceedings are to continue, by authorising an out-of-court sale at the request of the debtor or ordering a compulsory sale.
Article L. 311-2 of the Code of Civil Enforcement Procedures :
"Any creditor in possession of a writ of execution recording a claim that is due and payable may seize property under the conditions laid down by this Book and by the provisions of Book I that do not conflict with it.
Article L. 311-4 of the Code of Civil Enforcement Procedures :
"Where proceedings have been commenced by virtue of a provisionally enforceable court decision, the compulsory sale may only take place after a final decision has become res judicata.
However, during the opposition period, no proceedings may be instituted by virtue of a decision rendered in absentia.
Article L. 311-6 of the Code of Civil Enforcement Procedures :
"Unless there are specific legislative provisions, the seizure of property may relate to all rights in rem in respect of immovable property, including accessories deemed to be immovable property, which may be the subject of an assignment.
The enforcement judge verifies that the conditions of articles L. 311-2, L. 311-4 and L. 311-6 have been met, i.e. :
Consequently, the pursuing creditor's lawyer will have to attach to his file all the documents enabling the judge to carry out his duties, and in particular :
Conversely, the debtor's lawyer will be able to criticise the failure to communicate these documents, especially as the enforcement judge often does not spontaneously request the communication of documents proving that the creditor has a claim that is due and payable, such as the forfeiture of the term.
The Court of Cassation considers that it is up to the enforcement judge ruling on a property seizure to raise ex officio the grounds of non-receivability and the provisions of public policy (Com., 13 September 2011, no. 10-17.659).
On the other hand, the enforcement judge is not required to carry out any checks on the claim or to set the amount of the claim when a decision has been made by the debt recovery commission that the claim is admissible. over-indebtedness at the file orientation stage (Cass. opinion, 12 March 2020, no. 19-70.022, published in the bulletin).
Traditionally, enforcement proceedings, which are between a creditor and a debtor and not between a claimant and a defendant, are not proceedings and therefore cannot be subject to the sanction of the lapse of proceedings (Cass. civ., 2e, 24 March 2005, no. 03-16.312, published in the Bulletin).
However, the terminology used by the Cour de cassation is confusing, as it regularly uses the expression "instance" in matters of seizure of property, see for example in matters of interruption of payment prescription : "And whereas, having recalled that, under article 2242 of the Civil Code, the interruption of the limitation period resulting from the application to the court produced its effects until the proceedings were extinguished, the Court of Appeal, which correctly held that the proceedings initiated by the referral to the enforcement judge that gave rise to the referral judgment of 17 December 2009 had only been extinguished by the order of 31 October 2012 approving the proposed distribution of the sale price of the property, correctly deduced that the action for attachment of wages initiated on 24 October 2013 was admissible; " (Cass. civ., 2e, 6 Sept. 2018, no. 17-21.337, published in the Bulletin).
Moreover, under the old text, it had been held that incidents of proceedings could give rise to a lapse of time (Cass. civ., 2e, 6 févr. 1991, n° 89-21.371, published in the Bulletin).
If the creditor withdraws, the execution judge loses jurisdiction and no longer has the power to rule on disputes arising from the seizure of property proceedings or to rule on counterclaims arising from or relating to these proceedings (Cass. civ., 2e, 11 Jan. 2018, no. 16-22.829, published in the Bulletin).
In this case, the debtor had accepted the bank's withdrawal from the proceedings, but maintained its counterclaims, arguing that the withdrawal was only perfect if accepted by the defendant (article 395 of the Code of Civil Procedure).
The Court of Cassation did not follow his reasoning, enshrining the rule that the disappearance of the enforcement remedy as a result of the claimant's withdrawal means that the court does not have jurisdiction to hear counterclaims.
We should therefore recall the terms of article 2243 of the Civil Code, relating to the interruption of prescription: "The interruption is null and void if the claimant withdraws his claim or allows the proceedings to lapse, or if his claim is definitively rejected.
The seized debtor's lawyer cannot intervene before the orientation hearing, except in accordance with the provisions of article R. 322-20 of the Code of Civil Enforcement Procedures, which states that "An application for the amicable sale of the property may be submitted and judged before service of the summons to appear at the orientation hearing, provided that the debtor brings into question the creditors registered on the property.
The decision granting the application suspends the course of the enforcement proceedings, with the exception of the period allowed for registered creditors to declare their claims.
The debtor may submit a request for an amicable sale without waiting for the judge's authorisation, provided that the registered creditors are involved, in the form of a summons and a denunciation outside the orientation hearing.
The judgment authorising the out-of-court sale will comply with the requirements of article R. 322-21 of the Code of Civil Enforcement Procedures. Article R. 322-20 simply states that the judge may give a ruling before the orientation hearing. This text has no influence on the content of the judgment, which results from article R. 322-21:
"The enforcement judge who authorises the out-of-court sale sets the price below which the property may not be sold in view of the economic conditions of the market and, where applicable, the specific conditions of the sale.
The judge charges the costs of proceedings at the request of the pursuing creditor.
It sets the date of the hearing at which the case will be recalled within a period that may not exceed four months.
At this hearing, the judge may only grant additional time if the applicant can provide proof of a written commitment to purchase and to allow the deed of sale to be drawn up and concluded. This period may not exceed three months.
Finally, it should be noted that the procedure is suspended from the date of the judgement handed down by the enforcement judge following referral by the debtor.
Article R. 321-22 of the Code des procédures civiles d'exécution (Code of Civil Enforcement Procedures) sets out a specific mechanism for dealing with the expiry of the summons to pay for the seizure of property, relating to the time limit for expiry of the summons to pay: "This period is suspended or extended, as appropriate, by a note in the margin of the copy of the published summons of a court decision ordering the suspension of enforcement proceedings, the postponement of the sale, the extension of the effects of the summons or the decision ordering the reopening of the auction.
Thus, publication of the judgment authorising the sale out of court will suspend the time limit for expiry of the summons until the sale is completed or until legal proceedings are resumed.
On the other hand, the text does not provide for any automatic mechanism to compensate for the lapse of the summons to pay for the seizure of property if, as a result of the summons issued by the debtor, he suspends the proceedings and fails to take one of the numerous steps provided for on pain of lapse.
If necessary, the pursuing creditor will have to apply to the enforcement judge to have the lapse lifted, in accordance with article R. 311-11 of the Code of Civil Enforcement Procedures: "The time limits stipulated in 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 time limits stipulated in article R. 322-4, must be observed in order for the summons to pay to become valid.
Any interested party may ask the enforcement judge to declare the order null and void and to order, where necessary, that this be noted in the margin of the copy of the order published in the real estate register.
The application shall not be granted if the pursuing creditor can show a legitimate reason.
The declaration of lapse may also be revoked if the pursuing creditor informs the registry of the enforcement judge, within fifteen days of the declaration of lapse, of the legitimate reason that he would not have been able to invoke in good time.
In practice, this procedure is rarely used by the debtor. However, it is interesting in two respects:
The defences that can be put forward can be divided into several categories: enforcement, the procedure, the creditor, the property, the debtor and the sale.
As a good understanding of their scope and interest is inseparable from a good understanding of how the procedure works, these two topics will be addressed together.
Article L. 311-2 of the Code of Civil Enforcement Procedures :
"Any creditor in possession of a writ of execution recording a claim that is due and payable may seize property under the conditions laid down by this Book and by the provisions of Book I that do not conflict with it.
Article L. 311-4 of the Code of Civil Enforcement Procedures :
"Where proceedings have been commenced by virtue of a provisionally enforceable court decision, the compulsory sale may only take place after a final decision has become res judicata.
However, during the opposition period, no proceedings may be instituted by virtue of a decision rendered in absentia.
Article L. 111-3 of the Code of Civil Enforcement Procedures :
"Only the following constitute enforceable titles:
1° Judicial or administrative decisions when they are enforceable, as well as agreements to which these courts have granted enforceability;
2° Foreign deeds and judgments and arbitration awards declared enforceable by a decision that is not subject to an appeal suspending enforcement, without prejudice to the provisions of European Union law applicable ;
3° Extracts from conciliation reports signed by the judge and the parties;
4° Notarial deeds bearing the executory clause;
4° bis Agreements by which the spouses mutually consent to their divorce by private deed countersigned by lawyers, filed with a notary in accordance with the procedures set out in Article 229-1 of the Civil Code;
5° The document issued by the bailiff in the event of non-payment of a cheque or in the event of an agreement between the creditor and the debtor under the conditions set out in Article L. 125-1 ;
6° Certificates issued by legal entities governed by public law, qualified as such by law, or decisions to which the law attaches the effects of a judgment.
Article L. 311-4 of the Code des procédures civiles d'exécution (French Code of Civil Enforcement Procedures) states that the procedure may be initiated by virtue of a provisional enforceable decision, but that the forced sale may only take place after a final decision that has become res judicata.
As a result, the summary order allows the proceedings to be initiated as a precautionary measure, but does not allow the judge to order a forced sale. An out-of-court sale, on the other hand, may be ordered if requested by the seized debtor.
Again, under article L. 311-4 of the French Code of Civil Enforcement Procedures, a provisionally enforceable judgment allows proceedings to be initiated, but does not allow the court to order a compulsory sale.
Before the compulsory sale can be ordered, the appeals process must be completed for the decision to become res judicata.
The Court of Cassation recently stated that, pursuant to article 503, paragraph 1, of the Code of Civil Procedure, compulsory enforcement of judgments upheld on appeal is subject to service of the judgment and the judgement (Cass. 2e civ., 30 June 2022, no. 21-10.229, published in the Bulletin).
Lastly, no proceedings may be instituted in respect of a default judgment until the opposition period has expired.
Article L. 311-2 of the French Code of Civil Enforcement Procedures states that an enforcement order must state that the debt is liquid and due. The liquid and due nature of the claim does not raise any difficulties for court decisions ordering the debtor to pay a sum of money.
On the other hand, when the deed is a notarial deed, the valuation of the quantum of the claim is realised by the pursuing creditor and maturity results either from contractual or legal provisions.
For example: a bank that is pursuing recovery of a property loan settles the debt at the time of acceleration, which also makes the outstanding capital due. Any faults committed by the bank may validly be referred to the enforcement judge, since we are dealing with a writ of execution, but also with difficulties relating to its enforcement that have not been resolved by a judgment on the merits.
The lawyer defending the case will therefore seek to determine whether the forfeiture of the term was validly pronounced in the light of the case law on pre-litigation formal notice (Civ. 1e3 June 2015, no. 14-15.655) and forfeiture of term (Civ. 1e15 June 2016, no. 15-16.173).
Article L. 111-6 of the French Code of Civil Enforcement Procedures states that "A claim is liquid when it is valued in money or when the security contains all the elements required for its valuation.
It should be noted that when the claim of the pursuing creditor is contested, the enforcement judge is required to determine its amount: "When the amount of the claim of the pursuer is disputed, the judge is required to determine it and, to this end, to make, if necessary, the accounts between the parties, without being able to refuse to do so on the basis of the insufficiency of the evidence provided to him. (Cass. 2e civ., 15 Apr. 2021, no. 20-13.953).
This decision is particularly interesting because of its basis: it refers to article 4 of the Civil Code, relating to denial of justice. The Court of Cassation considers that the enforcement judge must determine the amount of the disputed claim, on pain of denial of justice.
The question of whether the debt is due and payable is not a problem when the enforcement order consists of a judgment that has become res judicata. Where, however, the enforcement order consists of a deed evidencing a bank loan, the bank must accelerate the loan in order for the outstanding capital to become due and payable.
By doing so, it sets the amount of its claim and makes it payable.
However, the Court of Cassation held that a debt declaration made to the secretariat of the over-indebtedness commission, which incorporates debts due and payable, does not entail forfeiture of the term. The debtor argued to the contrary, on the grounds that the debt declaration incorporated the amount of the outstanding capital: "Having regard to Articles L. 330-1, L. 331-3 and R. 332-1 of the Consumer Code, the first as amended by Law No. 2010-1609 of 22 December 2010, the second as amended by Law No. 2013-100 of 28 January 2013 and the third as amended by Decree No. 2011-741 of 28 June 2011 :
5. It follows from these texts that the over-indebtedness commission draws up a statement of the debtor's debts due and payable after having, if necessary, published a call for creditors, who must then declare their claims within the time limit set. Such a declaration does not entail the acceleration of loans taken out by the debtor.
6. In ruling that the bank's claim was time-barred and ordering the release of the property seizure, the court held that the letter of 8 February 2017 entitled "acceleration" was in fact only a formal notice, since the bank had claimed all the sums owed under the loan when it filed its claim with the Commission de surendettement in 2013.
7. In so ruling, even though such a declaration had not entailed the forfeiture of the term of the loan, the Court of Appeal violated the aforementioned texts. (Cass. 1st civ., 23 Nov. 2022, no. 20-20.535).
Article R. 321-3 of the French Code of Civil Enforcement Procedures sets out the information that must be included in the summons to pay for the seizure of property:
"In addition to the information required for bailiff's documents, the summons to pay serving as a seizure shall include :
1° The appointment of a lawyer by the pursuing creditor, which entails the election of an address for service;".
2° An indication of the date and nature of the enforcement order under which the summons was issued;
3° A breakdown of the sums claimed in principal, costs and accrued interest, together with an indication of the rate of default interest;
4° A warning that the debtor must pay these sums within a period of eight days, that failing payment, 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 of the enforcement judge to rule on the terms of the procedure;
5° The description of each of the assets or rights to which the seizure relates, as required by the rules governing land registration;
6° An indication that the summons is tantamount to seizure of the property and that the property is unavailable to the debtor from the time the document is served and to third parties from the time it is published in the property register;
7° An indication that the summons is tantamount to seizure of the fruits and that the debtor is the sequestrator;
8° An indication that the debtor retains the possibility of seeking a buyer for the seized property in order to proceed with its amicable sale, or to give a mandate to this effect, and a mention that this sale may nevertheless only be concluded after authorisation from the enforcement judge;
9° A summons, where the property is the subject of a lease, to inform the bailiff of the surname, first name and address of the lessee or, in the case of a legal entity, its name and registered office;
10° An indication that a bailiff may enter the premises to draw up a description of the property;
11° Indication of the enforcement judge with territorial jurisdiction to hear the attachment proceedings and related disputes and incidental claims;
12° An indication that the debtor who so requests in advance may benefit, for the seizure procedure, from legal aid if he fulfils the means conditions provided for by Law No. 91-647 of 10 July 1991 on legal aid and Decree No. 91-1266 of 19 December 1991 implementing this law;
13° An indication, if the debtor is a natural person, that if he considers himself to be in a situation of over-indebtedness, he may refer the matter to the Commission de surendettement des particuliers (Private Individuals' Over-indebtedness Commission) set up by Article L. 712-1 of the French Consumer Code.
If the distraining creditor acts by virtue of a transfer, for whatever reason, of the claim contained in the writ of execution on which the proceedings are based, the summons shall refer to the act of transfer unless the debtor has been duly notified beforehand.
When the summons to pay is served on a person who has granted a mortgage on one of his assets to guarantee the debt of a third party, the time limit for the summons provided for in 4° is extended to one month.
The particulars provided for in this article shall be prescribed on pain of nullity. However, nullity shall not be incurred on the grounds that the sums claimed are greater than those due to the creditor".
Invalidity requires proof of a grievance (see e.g. Civ. 2e30 April 2009, no. 08-12.105).
On the other hand, an error in the calculation of the sums owed in the summons to pay for the seizure of property is never a ground for nullity.
Article R. 311-11 of the Code of Civil Enforcement Procedures :
"The time limits stipulated in 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 time limits stipulated in article R. 322-4, must be observed in order for the summons to pay to become valid.
Any interested party may ask the enforcement judge to declare the order null and void and to order, where necessary, that this be noted in the margin of the copy of the order published in the real estate register.
The application shall not be granted if the pursuing creditor can show a legitimate reason.
The declaration of lapse may also be revoked if the pursuing creditor informs the registry of the enforcement judge, within fifteen days of the declaration of lapse, of the legitimate reason that he would not have been able to invoke in good time.
The prescribed deadlines are :
Lapse retroactively renders the summons ineffective and extinguishes the proceedings (Civ. 2e4 September 2014, no. 13-11.887).
In addition, the lapse "reaches all the acts of the seizure procedure". that the order initiates. Consequently, all subsequent procedural acts are annulled (Civ. 2e19 February 2015, no. 13.28-445). In this case, the cancellation of the subsequent acts deprived the summons to the orientation hearing of its effect of interrupting the limitation period.
Article R. 321-20 of the Code of Civil Enforcement Procedures :
"A summons to pay in the form of a seizure ceases to have effect by operation of law if, within five years of its publication, no mention has been made in the margin of this publication of a judgement recording the sale of the seized property.
In the event of refusal to lodge the order or rejection of the publication formality, the five-year period does not begin to run until the application has been regularised or the decision mentioned in article 26 of decree no. 55-22 of 4 January 1955 reforming land registration has been taken.
Publication is recorded on the day the deed is filed with the land registry.
When the publication has been rejected, it is registered from the date on which the rejection is rectified (article 34 of the decree of 4 January 1955).
Where publication has been refused or rejected and the refusal or rejection decision has been challenged before the administrative court, the date of publication of the order is that of the decision ordering publication (article 26 of the decree of 4 January 1955).
The expiry period, which used to be 2 years, was increased to 5 years by article 2 of decree no. 2020-1452 of 27 November 2020. The second paragraph of article 12 of the same decree states that "The other articles come into force on 1 January 2021. They apply to proceedings in progress on that date, with the exception of 19° and 25° of Article 1 and Article 10, which apply to proceedings commenced on or after 1 January 2021.
Thus, the amendment to the limitation period applies to current proceedings, it being specified that if the limitation period has already been extended and the judgment ordering this extension specified that it was valid for a new period of 2 years, then the res judicata effect of this decision will prevent the application of the provisions of the aforementioned article 12.
Article 510 of the Code of Civil Procedure states that "Subject to the following paragraphs, the period of grace may only be granted by the decision whose enforcement it is intended to defer.
In urgent cases, the interim relief judge has the same power.
After service of a summons or writ of seizure or from the hearing provided for in article R. 3252-17 of the French Labour Code, as the case may be, the enforcement judge has the power to grant a period of grace.
Reasons must be given for granting the extension.
Article 512 of the Code of Civil Procedure states that "The period of grace may not be granted to a debtor whose assets have been seized by other creditors or to a debtor who is in the process of legal settlement or liquidation of assets, or who has, by his own act, reduced the guarantees he had given to his creditor by contract.
In the same cases, the debtor loses the benefit of any period of grace he may have previously obtained.
Article 1343-5 of the Civil Code states that "The court may, taking into account the situation of the debtor and the needs of the creditor, postpone or stagger payment of the sums due, up to a maximum of two years.
By special reasoned decision, it may order that the sums corresponding to the deferred instalments shall bear interest at a reduced rate at least equal to the legal rate, or that the payments shall first be deducted from the capital.
It may make these measures conditional on the debtor performing acts to facilitate or guarantee payment of the debt.
The judge's decision suspends any enforcement proceedings initiated by the creditor. The interest increases or penalties provided for in the event of delay are not incurred during the period set by the judge.
Any stipulation to the contrary is deemed unwritten.
The provisions of this article shall not apply to maintenance debts.
Article R. 121-1 of the Code of Civil Enforcement Procedures states that "In matters of jurisdiction, any court other than the enforcement court must declare of its own motion that it does not have jurisdiction.
The enforcement judge may neither modify the terms of the court order on which the proceedings are based, nor suspend its enforcement. However, after service of the summons or writ of seizure, as the case may be, he has the power to grant a period of grace.
The enforcement judge may declare of his own motion that he does not have jurisdiction.
The enforcement judge therefore has the option of granting a period of grace.
The grounds for the request are not specific: it must be proved that granting a period of grace will enable the debtor to repay the creditor.
Paragraph 2 of Article R. 321-3 of the Code of Civil Enforcement Procedures states that "If the distraining creditor acts by virtue of a transfer, for whatever reason, of the claim contained in the writ of execution on which the proceedings are based, the summons shall refer to the act of transfer, unless the debtor has been duly notified in advance.
The Court of Cassation therefore ruled that "It follows from article R. 321-3 of the Code of Civil Enforcement Procedures that if the distraining creditor acts by virtue of a transfer, for whatever reason, of the claim contained in the writ of execution, the summons to pay valid as a distraint shall refer to the transfer deed unless the debtor has been duly notified in advance, as publication in the Trade and Companies Register of the merger concerning the pursuing creditor cannot make up for this. (Cass. 2e civ., 29 Sept. 2022, no. 21-16.146, published in the bulletin).
Article L. 111-7 of the Code of Civil Enforcement Procedures :
"The creditor has a choice of measures to ensure the performance or preservation of his claim. The execution of these measures may not exceed what is necessary to obtain payment of the obligation.
Article L. 121-2 of the Code of Civil Enforcement Procedures :
"The enforcement judge has the power to order the release of any unnecessary or abusive measure and to order the creditor to pay damages in the event of abuse of seizure.
Article L. 121-2 mentions two criteria: uselessness and abuse.
On the subject of uselessness, case law teaches us that a court of appeal that orders the release of the seizure of real estate on grounds that are inadequate to characterise the uselessness of the seizure and that do not provide a legal basis for its decision holds, on adopted grounds, that the debt that was being enforced was modest in relation to the value of the seized property, that a cheque for €1,000,00 proposed by the distrainee had been deposited in a CARPA account after the distrainor had refused to collect it, that the seized property rented out generated a monthly rent of €736.58, which, sequestered in a CARPA account after opposition by the pursuing creditor, could subsequently give rise to an attachment order, as the causes of the lawsuit could be settled in about ten months, so that the seizure of the property was unnecessary (Civ. 2, 22 June 2017, no. 16-16.871).
As for abuse, the Aix-en-Provence Court of Appeal ruled that : "Judging that a seizure of real property is excessive, given the small amount of the sum to be recovered, the possibility of seizing sums of money and the fact that the auction, if ordered, would not enable the plaintiff syndicate to recover its debt, and judging that such a seizure is both pointless and abusive, so that there is no reason to order the forced sale of the property and that the law should be applied". the aforementioned Article L. 111-7 (Aix-en-Provence Court of Appeal, 15 June 2009).
This case law repeated by other courts of appeal (see e.g. Agen Court of Appeal, 19 June 2012, no. 12/00688) makes it possible to identify the criteria for abuse:
Article L. 311-5, paragraph 1, of the Code of Civil Enforcement Procedures states that "A creditor who has seized one of his debtor's immovable properties may only initiate new seizure proceedings against another of his debtor's immovable properties if the property already seized is insufficient.
The pursuing creditor may not initiate several property seizure proceedings at the same time, unless the value of the property seized is insufficient to settle his claim.
Article L. 311-5, paragraph 2, of the Code of Civil Enforcement Procedures states that "The creditor may only seize immovable property that is not mortgaged in his favour if the mortgage from which he benefits does not allow him to enforce his rights.
The pursuing creditor must first seize the immovable mortgaged in his favour, unless the value of the immovable is insufficient to settle his claim.
In both cases, whether or not the value of the property against which the first seizure procedure was initiated is sufficient is left to the discretion of the enforcement judge.
Article L. 321-6, paragraph 1, of the Code of Civil Enforcement Procedures :
"In the event of the simultaneous seizure of several of the debtor's properties, the debtor may ask the court to limit the seizures.
Article R. 321-12, paragraph 1, of the Code of Civil Enforcement Procedures :
"The enforcement judge shall grant the debtor's request that the effects of the seizure be provisionally confined to one or more of his immovable properties where he establishes that the value of these properties is sufficient to pay off the pursuing creditor and the registered creditors. The judgment indicates the properties on which proceedings are temporarily suspended. After the final sale, the creditor may resume proceedings on the property thus excepted if the price of the property sold is not sufficient to satisfy the creditor.
The debtor may request that the seizure be confined to several properties, one of which would be sufficient to pay off the pursuing creditor and the registered creditors.
A stay of proceedings within the meaning of Article 378 of the Code of Civil Procedure: "A stay of proceedings shall suspend the course of the proceedings for the time or until the occurrence of the event that it determines.
The application must therefore be submitted in limine litis pursuant to the provisions of articles 73 and 74 of the Code of Civil Procedure.
Article L. 321-6, paragraph 2, of the Code of Civil Enforcement Procedures :
"He may also apply to the court for a partial conversion of the seizures into a mortgage on some of his properties, which will rank on the date of publication of the seizure, subject to registration of the security interest within one month of notification of the decision.
Article R. 321-12, paragraph 2, of the Code of Civil Enforcement Procedures :
"When, under the same conditions, the court orders the cancellation of the seizure on the properties initially seized that it designates and the registration of a judicial mortgage, the pursuing creditor, in order to see the registration take precedence on the date of publication of the summons to pay in the form of a seizure, has the judgment published in the margin of the copy of the summons and the mortgage registered, under the conditions of ordinary law.
The debtor may also request that the seizure be converted into a judicial mortgage when it concerns several properties and one of them would be sufficient to pay off the pursuing creditor and the registered creditors.
In this case, the mortgage will rank on the date of publication of the summons to pay for the seizure of the property, provided that the registration is published within one month of notification of the decision. The mortgage is registered in accordance with the rules of ordinary law.
In addition, the judgment ordering the cancellation of the summons and, consequently, the stay of proceedings will be published in the margin of the said summons.
Publication should be requested by sending the original and a copy of the deed to be published, together with certification of the identity of the parties and, if necessary, a request for a statement of formalities (CERFA no. 3233-SD), to the relevant land registry, together with a cheque made payable to Treasury in the amount of :
In accordance with article L. 722-2 of the French Consumer Code, a decision by the Commission de surendettement des particuliers (Private Individuals' Over-indebtedness Commission) to accept a case of over-indebtedness automatically halts any ongoing enforcement proceedings and prohibits any new proceedings: "The admissibility of the application suspends and prohibits enforcement proceedings against the debtor's assets and assignments of remuneration granted by the debtor in respect of debts other than maintenance debts.
The suspension of enforcement proceedings does not call into question the effects of the summons to pay for the seizure of the property. However, the benefits accruing after the admissibility decision become available again.
The opening of insolvency proceedings halts or prohibits all means of execution on both movable and immovable property, in accordance with article L. 622-21 of the French Commercial Code :
"I.-The opening judgment suspends or prohibits any legal action by all creditors whose claim is not mentioned in I of article L. 622-17 and who wish to :
1° Ordering the debtor to pay a sum of money;
2° The cancellation of a contract for non-payment of a sum of money.
II - It shall also halt or prohibit any enforcement proceedings on the part of such creditors, whether in respect of movable or immovable property, and any distribution proceedings that did not have an attributive effect prior to the opening judgment.
III - The time limits for forfeiture or cancellation of rights are consequently interrupted.
If the seizure of property proceedings are initiated at the time of publication in the BODACC of a judgment opening collective proceedings, the proceedings are immediately interrupted.
There are two possibilities for prosecution:
Article R. 322-5 of the Code of Civil Enforcement Procedures :
"In addition to the information required by Article 56 of the Code of Civil Procedure, the writ of summons shall include, on pain of nullity :
[...]
5° An indication of the upset price as set out in the conditions of sale and the possibility of contesting the amount on the grounds of manifest inadequacy;".
Article L. 322-6, paragraph 2, of the Code of Civil Enforcement Procedures :
"The debtor may, in the event of a manifest inadequacy in the amount of the reserve price, apply to the court to have a reserve price set in relation to the market value of the property and market conditions. However, in the absence of a bid, the debtor may only be declared the successful bidder for the initial reserve price.
The debtor may contest the amount of the upset price on the grounds of manifest inadequacy. The penalty for not holding an auction may lead the pursuing creditor to set a low reserve price, which the debtor may challenge. If this is the case, the debtor will have to show that the upset price is lower than the market price.
Setting a low bid remains a protective solution for the pursuing creditor whose claim is small, insofar as, in the absence of a bid, it will be declared the winning bidder for the amount of the initial bid.
Article R. 322-15 of the Code of Civil Enforcement Procedures :
"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 have been met, rules on any disputes and incidental claims and determines how the proceedings are to be pursued, by authorising an out-of-court sale at the request of the debtor or ordering a compulsory sale.
When authorising an out-of-court sale, the judge shall ensure that it can be concluded under satisfactory conditions, taking into account the situation of the property, the economic conditions of the market and any diligence on the part of the debtor.
The debtor may apply for an out-of-court sale without legal representation. The judge will ensure that the sale can be concluded under satisfactory conditions, i.e. the debtor's request for an out-of-court sale must be accompanied by documents demonstrating both the seriousness of his commitment and the accuracy of his assessment of the value of the property.
Article R. 311-5 of the Code of Civil Enforcement Procedures :
"Unless otherwise stipulated, no challenge or incidental claim may be lodged after the orientation hearing provided for in article R. 322-15, unless it relates to procedural documents issued after that hearing, in which case the challenge or incidental claim must be lodged within fifteen days of notification of the document. In this case, the challenge or incidental claim must be lodged within fifteen days of notification of the document.
The referral judgment disposes of all disputes and incidental claims, unless they relate to actions taken after the referral hearing.
The Court of Cassation points out that the court of appeal must respond to the arguments of the pursuing creditor who raises the inadmissibility of the challenge presented for the first time in the appeal proceedings, in a case where the debtor was in default at the orientation hearing (Civ. 2e, 1e October 2009, no. 07-18.630).
The Court of Cassation also points out that the Court of Appeal must note of its own motion the inadmissibility of challenges and incidental claims presented for the first time in the appeal proceedings (Civ. 2eMarch 11, 2010, no. 09-13.312).
Nevertheless, the case law adds that the obligation for the parties to the property seizure proceedings to raise, on pain of inadmissibility, at the orientation hearing all challenges and incidental claims does not apply to third parties to the proceedings (Civ. 2, 4 December 2014, no. 13-24.870) : "Whereas to declare the voluntary intervention of the Caisse des dépôts et consignations inadmissible, the enforcement judge, after recalling the terms of article R. 311-5 of the Code of Civil Enforcement Proceedings, held that this text does not distinguish between disputes originating from a party or a third party, it being further stipulated that third party interveners cannot have more rights than the original parties to the proceedings, and that the plea of inadmissibility cannot be dismissed on grounds relating to the substance of the law, namely the contra legem nature, according to the intervener, of articles 13 and 14 of the disputed sales terms and conditions;
In so ruling, whereas the obligation on the parties to the property seizure proceedings to raise, on pain of inadmissibility, all disputes and incidental claims at the orientation hearing does not apply to third parties to the proceedings, the enforcement judge violated the aforementioned texts;"..
The inadmissibility of challenges and incidental claims made after the orientation hearing is binding on the court hearing the case on the merits when it is seised after the orientation hearing of a claim that the enforcement judge had jurisdiction to hear: " 7. It follows from the combination of these texts that an application made by the debtor against the pursuing creditor before a judge hearing the case on the merits, after the orientation hearing provided for in article R. 322-15 of the Code of Civil Enforcement Procedures, may only be declared inadmissible by application of the rule set out in article R. 311-5 of the same Code or of the res judicata effect of the orientation judgment, if the enforcement judge, previously seised of the seizure of property proceedings, had jurisdiction to hear the case. (Cass. 2e civ., 20 Oct. 2022, no. 21-11.783, published in the bulletin).
What's more, "Where pleas of inadmissibility raised in the course of proceedings for the seizure of property have been declared inadmissible on the basis of this text, such inadmissibility shall not prevent the same pleas of inadmissibility from being raised in the course of other proceedings. (Cass. 2e civ., 8 Dec. 2022, no. 21-10.590, published in the bulletin).
Lastly, the enforcement judge is obliged to raise of its own motion any pleas arising from a breach of the public policy provisions of the Consumer Code. For example, the Court of Cassation raised of its own motion the plea arising from the presence of an unlawful anatocism clause in the real estate loan contract and quashed the judgment handed down by the Court of Appeal, even though the debtor's lawyer had not raised the difficulty. It is therefore possible to lodge an appeal and ask the court to raise this plea of its own motion, even in the absence of a defence at first instance, for example (Cass. 1re civ., 17 June 2015, no. 14-11.807).
Article R. 322-15 of the Code of Civil Enforcement Procedures :
"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 have been met, rules on any disputes and incidental claims and determines how the proceedings are to be pursued, by authorising an out-of-court sale at the request of the debtor or ordering a compulsory sale.
When authorising an out-of-court sale, the judge shall ensure that it can be concluded under satisfactory conditions, taking into account the situation of the property, the economic conditions of the market and any diligence on the part of the debtor.
Article R. 322-18 of the Code of Civil Enforcement Procedures :
"The referral judgement shall mention the amount of the pursuer's claim in principal, costs, interest and other accessories.
The judgment shall rule on any incidental claims, settle any disputes raised by the parties, determine how the proceedings are to be continued and state the amount of the claim in principal, costs, interest and other incidentals.
The use of the term " mentions " was the source of controversy in the legal literature until a series of rulings clarified the role of the judge. In fact, if the court merely mentions the amount of the claim, does this mention have the force of res judicata?
First of all, the Court of Cassation states that the enforcement judge must mention the amount of the claim without being bound by the amount appearing in the summons to pay for the seizure of property (Civ. 2e24 September 2015, no. 14-20.009).
Next, it states that the referral judgment, insofar as it sets the amount of the pursuing creditor's claim, is res judicata in the main proceedings, even if no dispute has been raised on this subject (Com., 13 September 2017, appeal no. 15-28.833).
Finally, in an opinion dated 12 April 2018 (request for opinion no. P 18-70.004, opinion no. 15008), issued at the request of the enforcement judge of the Poitiers tribunal de grande instance, the Second Civil Chamber first recalls that:
"The enforcement judge rules as the judge in the main proceedings (article R. 121-14 of the Code of Civil Enforcement Procedures), and also rules on questions of legal substance (article L. 213-6 of the Code of Judicial Organisation), so that his decisions have the force of res judicata in the main proceedings, unless otherwise stipulated.
It therefore issues the following opinion:
"In property seizures, in order to set the amount of the debtor's claim pursuant to article R. 322-18 of the Code of Civil Enforcement Procedures, the enforcement judge is required to verify that this amount is consistent with the statements in the enforcement order on which the proceedings are based, pursuant to the provisions of article R. 322-15 of the same code, whether or not the debtor disputes this amount.
If it is required to carry out this verification of its own motion, it shall also exercise, in its capacity as judge of the main proceedings, the powers conferred on it by the Code of Civil Procedure or by special provisions.
Mention of the quantum of the claim of the pursuing creditor is therefore indisputably res judicata.
Article R. 322-21 of the Code of Civil Enforcement Procedures :
"The enforcement judge who authorises the out-of-court sale sets the price below which the property may not be sold in view of the economic conditions of the market and, where applicable, the specific conditions of the sale.
The judge charges the costs of proceedings at the request of the pursuing creditor.
It sets the date of the hearing at which the case will be recalled within a period that may not exceed four months.
At this hearing, the judge may only grant additional time if the applicant can provide proof of a written commitment to purchase and to allow the deed of sale to be drawn up and concluded. This period may not exceed three months.
Article R. 322-20 of the Code of Civil Enforcement Procedures :
"An application for the amicable sale of the property may be submitted and judged before service of the summons to appear at the orientation hearing, provided that the debtor brings into question the creditors registered on the property.
The decision granting the application suspends the course of the enforcement proceedings, with the exception of the period allowed for registered creditors to declare their claims.
The judgment authorising the out-of-court sale sets the price below which the property may not be sold.
In addition, the judge sets the date for a reminder hearing within a period that may not exceed 4 months. In practice, the debtor often has a longer period because the 4-month period is counted from the deliberation, which itself takes place several weeks after the pleadings hearing. At the reminder hearing, the debtor may again have a longer period for the same reasons.
This judgment suspends the course of the proceedings, whether or not the claim was made prior to the issue of the summons to the orientation hearing (Civ. 2e23 October 2008, no. 08-13.404).
The suspension of proceedings will result in the suspension of the time limit for expiry of the summons to pay valid as a seizure of property from the date of publication of the judgment on the margin of the summons, in accordance with article R. 321-22 of the French Code of Civil Enforcement Procedures, relating to the time limit for expiry of the summons to pay:
"This period is suspended or extended, as appropriate, by a note in the margin of the copy of the published summons of a court decision ordering the suspension of enforcement proceedings, the postponement of the sale, the extension of the effects of the summons or the decision ordering the reopening of the auction.
Article R. 322-26 of the Code of Civil Enforcement Procedures :
"When the enforcement judge orders a forced sale, he sets the date of the hearing at which it will take place within a period of between two and four months from the date of his decision.
The judge shall determine the procedures for visiting the property at the request of the pursuing creditor.
The judge sets a date for the auction within a period of between +2 and +4 months from the date of deliberation, and authorises the inspection of the property in accordance with the terms set by the judge, for example within a fortnight of the sale and with the assistance of a bailiff, and if necessary with the assistance of the police and a locksmith.
Article R. 311-7, paragraph 2, of the Code of Civil Enforcement Procedures :
"Decisions are notified by service. However, when, by virtue of a specific provision, the enforcement judge rules by means of an order rendered at last instance, his decision is notified by the registry simultaneously to the parties and their lawyers. The same applies to notification of a decision to opt for an out-of-court sale where the debtor has not set up a lawyer and of decisions made pursuant to articles R. 311-11 and R. 321-21.
The referral judgement ordering the compulsory sale and the incidental judgements must be notified by way of service. However, the court registry will notify the parties and their lawyers by registered post of the settlement judgment ordering the out-of-court sale, the judgment declaring the summons to pay to lapse and the judgment declaring the summons to pay to lapse, in accordance with the provisions relating to the notification of documents in the ordinary form (Code of Civil Procedure, articles 665 and 670-3).
The deadline for filing a claim and the documents to be attached to it vary depending on the date on which the mortgage registration was published.
Article R. 322-12 of the Code of Civil Enforcement Procedures :
"The period within which a registered creditor who has been notified of a summons to pay equivalent to a seizure must declare his claim is two months from the date of notification.
However, a creditor who can prove that his default is not due to his own fault may ask to be authorised to declare his claim after the time limit has expired. The judge shall rule by order on the application, which shall be filed, failing which it shall be inadmissible, no later than fifteen days before the date set for the auction hearing or the hearing to establish the out-of-court sale.
Article R. 322-7 4° of the Code of Civil Enforcement Procedures :
"4° A summons to declare the debts registered on the seized property, in principal, costs and accrued interest, with an indication of the rate of default interest, by a lawyer's deed filed at the registry of the enforcement judge and accompanied by a copy of the debt deed and the registration slip, and to notify the pursuing creditor and the debtor of this declaration on the same day or the first working day following, in the same form or by service;".
The registered creditor has a period of 2 months from notification of the summons to appear at the orientation hearing issued by the pursuing creditor.
The creditor may ask the enforcement judge, by way of a petition, to authorise him to declare his claim after the time limit if he can prove that his default is not due to his own fault. This request must be filed, failing which it will be inadmissible, no later than 15 days before the date set for the adjudication hearing or the hearing to establish the out-of-court sale.
The claim shall be declared in principal, costs and accrued interest, with an indication of the rate of default interest, by a lawyer's deed filed with the clerk of the auction registry, accompanied by :
The statement of claim must be notified on the same day or on the first working day thereafter to the pursuing creditor and the debtor, by legal document or by service.
In practice, the document will be notified to the creditor's lawyer and to the debtor if he or she has instructed a lawyer; otherwise, it will be notified to the debtor by service of process.
Caution! Article R. 322-13 of the Code of Civil Enforcement Procedures, relating to the intervention in the proceedings by a creditor registered after publication of the summons, provides that the pursuing creditor must "intervenes in the procedure by declaring its claim. Consequently, the declaration of claim is equivalent to constitution.
This provision is not repeated in the texts relating to creditors registered prior to publication of the summons. As this is clearly an omission on the part of the legislator, it is generally accepted that the declaration of claim also constitutes a constitution for the creditor registered prior to publication of the summons.
However, it is possible to serve a writ of constitution with the statement of claim, together with a summons to communicate the documents in the writ of summons. This solution is preferable insofar as the statement of claim per se does not include a summons to produce the documents.
Article R. 322-13 of the Code of Civil Enforcement Procedures :
"Creditors who have registered their security interest in the property after publication of the summons to pay equivalent to a seizure but before publication of the sale, intervene in the proceedings by declaring their claim, based on the principal, costs and interest accrued to the date of the declaration. On pain of inadmissibility, the declaration shall be made by a lawyer's deed filed at the registry of the enforcement judge within one month of registration and shall be accompanied by a copy of the debt instrument and the registration slip and a mortgage statement surveyed on the date of registration. The declaration is notified to the pursuing creditor and the debtor in the same manner or by service on the same day or on the first working day thereafter.
A creditor who publishes a mortgage registration after publication of the summons to pay for the seizure, but before publication of the sale, has 1 month from publication of the registration to intervene in the proceedings by declaring his claim.
The procedures for declaring the claim are the same as for creditors registered prior to publication of the summons to pay in the form of a seizure, subject to the deposit at the registry, in addition to the copy of the writ of execution and the publication slip:
The original copy, bearing the publication form, may be returned several months after it has been filed with the Land Registry. For this reason, the person responsible for publication will systematically draw up a mortgage statement at the date of registration, in order to know the publication references and to identify any proceedings in progress.
A registered creditor who fails to declare his claim within the prescribed period loses the benefit of his mortgage ranking and is downgraded to unsecured ranking.
The conditions and time limits within which the claim declaration may be contested depend essentially on article R. 311-5 of the Code of Civil Enforcement Procedures, which states that :
"Unless otherwise stipulated, no challenge or incidental claim may be lodged after the orientation hearing provided for in article R. 322-15, unless it relates to procedural documents issued after that hearing, in which case the challenge or incidental claim must be lodged within fifteen days of notification of the document. In this case, the challenge or incidental claim must be lodged within fifteen days of notification of the document.
Thus, if the statement of claim is notified when the case has not been referred, it must be contested at the referral hearing; if it was filed after the referral judgment was handed down, it must be contested by way of incidental submissions within 15 days of notification.
Case law confirms this unambiguously.
With regard to the enforcement judge's obligation to rule on the dispute relating to the statement of claim during the orientation hearing, it states: "The enforcement judge is required to rule on disputes relating to the validity of the debtor's statement of claim raised during the orientation hearing. (Cass. opinion, 16 May 2008, no. 08-00.002, published in the Bulletin).
If the statement of claim was made prior to the referral judgment, the dispute cannot be formalised after this hearing, pursuant to the aforementioned Article R. 311-5, which has been amply confirmed by case law:
"But whereas, pursuant to Article 6 of Decree no. 2006-936 of 27 July 2006, unless otherwise provided, no challenge or incidental claim may be lodged after the orientation hearing, failing which it will be declared inadmissible; whereas, having noted that the orientation hearing had been held on 20 October 2008 and that, at the end of it, a judgment had rejected Mr and Mrs X.'s challenges relating to the regularity of the proceedings and had stayed the ruling on their challenges on the merits, the Court of Appeal ruled correctly that the claims made by Mr and Mrs X. were inadmissible. and Mrs X... relating to the regularity of the proceedings and stayed their substantive challenges, the Court of Appeal rightly decided that the claims made by Mr and Mrs X... subsequent to that hearing were inadmissible;". (Cass. civ., 2e, 17 Nov. 2011, no. 10-25.439, published in the Bulletin).
In the case of a claim lodged after the referral decision, the same rules require that the claim be formalised within the fortnight following notification.
Article L. 322-1 of the Code of Civil Enforcement Procedures :
"The assets are sold either out of court by judicial authorisation or by auction.
In the event of an agreement between the debtor, the pursuing creditor, the creditors registered on the seized property on the date of publication of the summons to pay valid as a seizure, the creditors registered on the property before publication of the bill of sale and who intervened in the proceedings and the creditor mentioned in 1° bis of article 2374 of the Civil Code, they may also be sold by mutual agreement after the compulsory sale has been initiated and until the opening of the auction.
A sale by mutual agreement is where the pursuing creditor, the registered creditors and, where applicable, the co-owners' association authorise the debtor to sell the property out of court.
The text does not specify the form in which the sale must be carried out, but states that it can only take place between the referral of the case for compulsory sale and the opening of the auction. However, if the sale is carried out before the auction hearing, the pursuing creditor will not request the sale, and failure to do so will result in the lapse of the summons to pay for the seizure of the property, in accordance with article R. 322-27 of the Code of Civil Enforcement Procedures:
"On the date indicated, the pursuing creditor or, failing this, any registered creditor, then subrogated to the pursuit, shall request the sale.
If no creditor requests the sale, the judge declares that the summons to pay serving as a seizure has lapsed. In this case, the defaulting creditor retains all the costs of the seizure unless the court decides otherwise, giving its reasons.
Although the text does not provide any further details, in the case of a private sale that takes place before the auction hearing, the notary has two options:
This second solution is safer for the buyer, as it ensures that the sale is enforceable as soon as the deed of sale is signed, without having to wait for the judgment declaring that the summons to pay for the seizure of the property has lapsed.
It should be noted that the law only authorises private treaty sales between the referral to a compulsory sale and the auction hearing, because :
The text thus provides a solution for the amicable sale of the building at each stage of the procedure, initially under the supervision of the judge, then without the supervision of the judge, but with the agreement of the parties and the co-owners' association.
In practice, however, there is nothing to prevent the debtor from seeking and obtaining authorisation from its creditors to sell by mutual agreement at any stage of the proceedings, although this solution requires different techniques to be used to abandon the proceedings properly:
Example: the case is referred for an out-of-court sale with judicial authorisation, but the debtor does not manage to sell under the terms and conditions of the referral judgment. The debtor nevertheless manages to submit a compromise sale to the pursuing creditor and the registered creditors at a price higher than the expected auction price. The pursuing creditor and the registered creditors will be able to accept a sale by mutual agreement, which the enforcement judge will not be able to approve as he will be bound by the res judicata authority attached to the referral judgment he has previously handed down. The pursuing creditor will therefore have to authorise the release of the summons with the agreement of the registered creditors, before presenting a withdrawal submission at the reminder hearing.
Lastly, the pursuing creditor's lawyer may request payment of the taxed costs, fixed emoluments and proportional emolument under the same conditions as for an out-of-court sale. It will be difficult for the debtor to object: if he does, the pursuing creditor can simply refuse to agree to the private sale and continue the procedure towards a forced sale.
The request for postponement must always be made by way of pleadings (Cass. 2e civ., 4 Nov. 2021, no. 20-16.393, published in the Bulletin).
Article R. 322-28 of the Code of Civil Enforcement Procedures :
"The compulsory sale may only be postponed in the event of force majeure or at the request of the Commission de surendettement (excessive debt commission), in accordance with articles L. 722-4 or L. 721-7 of the Code de la consommation.
The auction hearing may only be postponed in the event of force majeure.
The request for postponement must be made in writing, failing which the order will lapse. Indeed, case law analyses this request as an incidental request, which as such must be presented in writing, so that the absence of a written request for postponement of the auction hearing results in the lapse of the summons to pay for the seizure of the property for failure to request the sale (Civ. 2e22 February 2012, no. 11-11.914).
If the enforcement judge refuses to order a postponement of the sale, the pursuing creditor's lawyer will be obliged to request the sale, failing which the summons to pay will lapse. This is why it is advisable to proceed with the formalities for advertising when the auction hearing has not been postponed.
Example: the debtor applies for a postponement of the auction hearing, which the pursuing creditor opposes. As a precaution, the pursuing creditor carries out the formalities for advertising, so that if the judge refuses to order the postponement of the auction hearing, he can request the sale. Failure to advertise or request the sale will result in the sale order lapsing.
Article R. 322-28 of the Code of Civil Enforcement Procedures :
"The compulsory sale may only be postponed in the event of force majeure or at the request of the Commission de surendettement (excessive debt commission), in accordance with articles L. 722-4 or L. 721-7 of the Code de la consommation.
If the admissibility decision is subsequent to the referral judgment ordering the compulsory sale of the property, then the postponement of the auction hearing is not automatic. Articles L. 722-4 and L. 722-7 of the French Consumer Code provide as follows: "In the case of a property seizure, when a compulsory sale has been ordered, the auction date may only be postponed by a decision of the judge responsible for the property seizure, referred to this end by the commission, for serious and duly justified reasons.
"In the case of a property seizure, when a compulsory sale has been ordered, the auction date may only be postponed by a decision of the judge responsible for the property seizure, referred to this end by the commission, for serious and duly justified reasons.
The terms of the articles are exactly the same, but the first is entitled Referral to the commission de surendettement des particuliers (private individuals' over-indebtedness commission) while the second is under the title Effects of the admissibility decision. In other words, the Commission de surendettement can refer the matter to the judge at any time after the overindebtedness file has been submitted, to request a postponement of the adjudication hearing.
The enforcement judge may refuse this request (for an example, see: TJ Avignon, 18 Feb. 2021, no. 18/01525).
The case law adds that the adjudication judgment rejecting the request for postponement submitted by the over-indebtedness commission is not subject to appeal, which the court must note of its own motion in accordance with article 125 of the Code of Civil Procedure, according to which the absence of legal remedies constitutes a public policy ground of non-receivability (Civ. 2e29 September 2011, no. 10-27.658).
Article R. 322-19 of the Code of Civil Enforcement Procedures :
"An appeal against a referral order is lodged, heard and decided in accordance with the fixed date procedure, without the appellant having to rely on a peril in his application.
Where the appeal is lodged against a judgment ordering the sale by auction, the court shall rule no later than one month before the date set for the auction. Failing this, 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 the application of article R. 121-22 prevents the auction hearing from being held on the scheduled date and the judgement ordering the auction has been confirmed on appeal, the date of the auction is set on request by order of the enforcement judge. No appeal shall lie from a decision of the enforcement judge made pursuant to this paragraph.
When a party appeals against the preliminary ruling, the court must normally rule no later than 1 month before the date of the auction hearing. In practice, this is rarely the case, and the law provides that the pursuing creditor (and not the debtor) may request a postponement of the auction hearing in such cases.
If the debtor wishes to apply for a postponement of the auction hearing on the grounds of the current appeal, he will have to show that this appeal procedure has the characteristics of force majeure in the sense that the court's decision is unforeseeable.
If, at the same time as the appeal, the appellant applies for and obtains a stay of proceedings under article R. 121-22 of the Code of Civil Enforcement Procedures, and this decision prevents the enforcement judge from holding the auction hearing on the scheduled date, and the judgment ordering the sale by auction is confirmed on appeal, then the pursuing creditor will have to apply for a new auction date.
It should be noted that the enforcement judge sometimes issues an incidental judgment at the enforcement stage which, as such, does not direct the case towards an amicable sale or a compulsory sale. In such cases, the question of the applicable appeal procedure has arisen, and the Cour de cassation has ruled that all judgments handed down at the orientation hearing are subject to the fixed date procedure: "In so ruling, even though appeals against judgments handed down by the enforcement judge at the orientation hearing come under the fixed date procedure, pursuant to article R. 322-19 of the Code of Civil Enforcement Procedures, which meant that an appeal lodged without authorisation was inadmissible, the Court of Appeal violated the aforementioned texts. (Cass. 2e civ., 26 Sept. 2019, no. 15-24.702).
In addition, the appellant must involve not only the pursuing creditor, but also all the registered creditors. This is because the Court of Cassation rightly considers that the subject of the dispute in a property seizure is indivisible: "But whereas the Court of Appeal correctly held that in proceedings for the seizure of real property there is an indivisible link between all the creditors, so that pursuant to article 553 of the Code of Civil Procedure, an appeal by one of the parties to the proceedings before the execution judge, even if limited to contesting the claim of the pursuing creditor, must be brought against all the parties to the proceedings, failing which the appeal is inadmissible;". (Cass. 2e civ., 21 Feb. 2019, n° 17-31.350, Published in the bulletin).
Case law shows that the decision of the enforcement judge granting the debtor a period of grace is binding on the real estate enforcement judge, who must postpone the auction hearing (Civ. 2e2 July 2009, no. 08-16.753). The judgment is based on article 480 of the Code of Civil Procedure, the first paragraph of which states:
"A judgment which resolves in its operative part all or part of the principal claim, or which rules on a procedural objection, a plea in bar or any other incident, shall, as soon as it is delivered, be res judicata in relation to the dispute which it resolves.
It is therefore the authority of res judicata attached to the judgment that compels the real estate execution judge to accept the request for postponement of the auction hearing.
In any event, any suspension of enforcement measures ordered by judgment (collective proceedings, personal recovery, etc.) should force the judge to accept the request for postponement of the auction hearing. This is also why the over-indebtedness commission, whose admissibility decision does not have the force of res judicata, must submit a specially reasoned request for postponement of the auction hearing, which the enforcement judge may refuse.
Article R. 322-29 of the Code of Civil Enforcement Procedures :
"If the compulsory sale is adjourned to a later hearing, it shall be advertised again in the same way and within the same timeframe as the first compulsory sale.
Some judges adjourn the case to a later hearing without setting a new auction date. This interposes an incidental hearing between the postponed sale hearing and the new auction hearing.
The text does not specify the deadline by which the case must be referred, but if the court sets a new auction date on the referral, it must allow the pursuing creditor sufficient time to carry out the advertising formalities once again, which must be repeated and subject to tax so that the buyer is liable.
Article R. 322-48 of the Code of Civil Enforcement Procedures :
"The provisions of this section are prescribed on pain of nullity of the auction raised ex officio.
Any new bid duly placed invalidates the previous bids.
If the last bid is invalid, the auction is automatically invalid.
Article R. 322-49 of the Code of Civil Enforcement Procedures :
"Challenges to the validity of the bids are made orally at the hearing, through a lawyer. The judge shall rule immediately and, if necessary, immediately resume the bidding under the conditions set out in article R. 322-43.
Article R. 322-43 of the Code of Civil Enforcement Procedures :
"The judge will point out that the bidding will start from the amount of the reserve price set, depending on the case, in the terms and conditions of sale or by the court decision provided for in the second paragraph of article L. 322-6.
The auction does not have to be declared null and void. It is pronounced ipso jure. However, regular bids cover the nullity of irregular bids, so that only the nullity of the last bid is problematic.
Challenges to the validity of auctions are made orally at the hearing by a lawyer. If the judge finds that the auction is null and void, the auction is resumed. ab initio i.e. on the reserve price set in the conditions of sale or in the court decision setting the reserve price.
Article R. 322-60, paragraph 2, of the Code of Civil Enforcement Procedures :
"Only an adjudication ruling on a dispute may be appealed on this ground within fifteen days of its notification.
The auction judgement may only be appealed if it rules on a dispute, in which case the appeal is only admissible in respect of the part of the judgement that ruled on the dispute (Poitiers Court of Appeal, 16 October 2009, no. 09/00898).
However, the right to appeal to the Supreme Court remains open where the auction judgement cannot be appealed on the grounds that it is ultra vires (Civ. 2e22 November 2001, no. 00-13.773; Civ. 2e6 December 2012, no. 11-24.028).
Notwithstanding the provisions of paragraph 2 of article R. 322-60 of the Code des procédures civiles d'exécution, which limits the right of appeal to the auction judgement that rules on a dispute, the Cour de cassation has long maintained a restrictive jurisprudence according to which an auction judgement that has not ruled on any dispute is not subject to appeal, unless it is ultra vires :
The rulings of the Cour de cassation do not make it possible to determine whether an adjudication ruling on a dispute is subject to an appeal other than an appeal, such as an opposition, a third-party opposition or an application for review.
Case law has long held that an adjudication judgment is not subject to review:
In a recent decision, the Rouen Court of Appeal nevertheless accepted the principle of an application for review of an auction judgement that had not been contested at the auction hearing, but rejected it on the grounds that the conditions for such an application had not been met in this case (Rouen Court of Appeal, Local Appeal Division, 14 Oct. 2021, no. 20/02505).
The court thus disassociated itself from the case law of the Cour de Cassation, according to which the auction judgement is not subject to appeal, unless it has been contested at the hearing.
Article 11 of the general terms and conditions of sale :
"If the purchaser fails to pay the taxed price or costs within the prescribed time, the property is put back up for sale at the request of the pursuing creditor, a registered creditor or the distrainee, under the conditions of the first forced sale.
If the price of the new forced sale is lower than that of the first, the defaulting bidder will be obliged to pay the difference by all legal means, in accordance with the provisions of article L.322-12 of the French Code of Civil Enforcement Procedures.
The defaulting bidder shall be liable for the costs charged at the first sale hearing. He will be liable for interest at the legal rate on his bid from two months after the first sale until the new sale. The interest rate will be increased by five points at the end of a period of four months from the date of the first final sale, in accordance with the provisions of article L. 313-3 of the French Monetary and Financial Code.
Under no circumstances will the defaulting bidder be entitled to a refund of any sums paid.
If the price of the second sale is higher than that of the first, the difference will belong to the creditors and the seizing party.
The purchaser must pay the costs of the new sale.
Article L. 322-12 of the Code of Civil Enforcement Procedures :
"Failing payment of the price or a deposit and payment of costs, the sale is automatically cancelled.
The defaulting bidder is required to pay the difference between his bid and the resale price, if the latter is lower. He may not claim reimbursement of the sums he has paid.
Article R. 322-72 of the Code of Civil Enforcement Procedures :
"The successful bidder at the initial sale retains the costs charged at the time of the auction. After a period of two months following the auction, he is liable for interest at the legal rate on his bid until the new sale.
The person declared the successful bidder at the end of the new auction must pay the costs relating to the new auction.
In the absence of settlement or deposit of the price and payment of costs, the sale is automatically cancelled and the property is put back up for sale on reopening of the auction.
However, the Court of Cassation has ruled that the defaulting bidder may pay until a decision is made on the challenge to the request to reopen the auction (Cass. 2e civ., 1 Oct. 2020, no. 19-12.830, published in the Bulletin).
As a penalty, the defaulting bidder will be required to pay :
In addition, the defaulting bidder will not be entitled to the return of sums already paid, which will be included in the basis of assessment for the distribution of funds. For example, the bank cheque for 10 % will not be returned.
The action to supplement the price, to pay the difference between the sale price of the two auctions, will be brought by the party who has an interest in it, i.e. in practice :
The Court of Cassation confirmed that the enforcement judge had jurisdiction to declare the cancellation of a sale by auction resulting, pursuant to article L. 322-12 of the Code of Civil Enforcement Procedures, from the failure to pay or deposit the sale price (Civ. 2e23 February 2017, no. 16-13.178).
What's more, "resolution of the sale can only be requested on the basis of the special provisions of the code of civil enforcement procedures, which derogate from those of the general law of sale, and as long as the sale price has not been paid". (Cass. 2e civ., 3 Feb. 2022, no. 20-19.522, published in the bulletin).
It should be noted that in addition to non-payment of the price and taxed costs, articles R. 322-66 and R. 322-67 of the Code of Civil Enforcement Procedures also mention non-payment of transfer duties as grounds for reopening the auction.
Article 11, paragraph 1, of the general terms and conditions of sale :
"If the purchaser fails to pay the taxed price or costs within the prescribed time, the property is put back up for sale at the request of the pursuing creditor, a registered creditor or the distrainee, under the conditions of the first forced sale.
Article R. 322-66 of the Code of Civil Enforcement Procedures :
"If the successful bidder fails to pay the price, the taxed costs or the transfer duties within the prescribed time, the property is put back up for sale at the request of the pursuing creditor, a registered creditor or the distrainee, under the conditions of the first forced sale.
Article R. 322-67 of the Code of Civil Enforcement Procedures :
"Any person wishing to repeat the auction must obtain a certificate from the registry stating that the successful bidder has not provided proof of payment of the price or its deposit or payment of the taxed costs or transfer duties.
The person seeking to reopen the auction shall serve the certificate on the distrainee, the successful bidder and, where applicable, the creditor who requested the sale.
In addition to the information required for bailiff's documents, service on the purchaser shall include, under penalty of nullity :
1° A summons to pay the price, taxed costs and transfer duties within eight days;
2° A reminder of the provisions of the second paragraph of article L. 322-12 and articles R. 311-6, R. 322-56, R. 322-58, R. 322-68, R. 322-69 and R. 322-72.
If the first auction hearing is null and void, the parties are obliged to repeat the auction under the same conditions as the first forced sale.
The party wishing to continue with the reopening of the auction must obtain a certificate from the registry stating that the successful bidder has failed to provide proof of deposit of the price, taxed costs or transfer duties.
In practice, the winning bidder must provide the clerk's office with the receipt for payment of the taxed costs, but not the receipt for payment of the sale price, which the receiver should normally provide.
However, the registry will be aware of the non-payment of transfer duties, as it is responsible for registering the sale with the Treasury.
In order to demonstrate that the price has not been paid, the lawyer must therefore ask the escrow agent designated in the conditions of sale for a certificate of non-payment, which he will then send to the auction registry. The clerk's office can then draw up the certificate of non-payment, which the successful bidder's lawyer must serve by bailiff on the successful bidder and, if necessary, on the creditor who requested the sale.
The deed must include the information specified in article 648 of the Code of Civil Procedure, as well as a reproduction of the second paragraph of article L. 322-12 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 Procedures :
"The successful bidder may contest the certificate within fifteen days of being served with it. The decision of the enforcement judge ruling on this challenge is not subject to appeal.
The Court of Cassation points out that this challenge must be made in the form of a lawyer's submission, in accordance with Article R. 311-6 of the Code of Civil Enforcement Procedures (Civ. 2eFebruary 21, 2013, no. 11-27.635).
Article R. 322-69 of the Code of Civil Enforcement Procedures :
"If the successful bidder fails to comply with the summons, the property will be put up for sale again at a new auction.
The new sale hearing is set by the enforcement judge, at the request of the party seeking to reopen the bidding, at a date between two and four months following the date on which the registry's certificate is served on the buyer.
If the certificate provided for in article R. 322-67 is contested, this period runs from the date of the rejection decision.
The distrainee debtor, the pursuing creditor, the registered creditors and the defaulting bidder are notified by the court registry of the date of the hearing by registered letter with acknowledgement of receipt.
If the defaulting buyer fails to comply with the summons to pay the price, the taxed costs and the transfer duties within 8 days of the date of service of the certificate by the registry on the buyer, the party seeking to reopen the bidding shall file a request to have the enforcement judge notify the buyer of a new auction date between +2 and +4 months from the date of service of the certificate by the registry on the buyer.
If the unsuccessful bidder contests the registry's certificate, this period of between +2 and +4 months is counted from the date of the enforcement judge's ruling on the dispute.
The distrainee debtor, the pursuing creditor, the registered creditors and the defaulting successful bidder are notified of the date of the hearing by the clerk's office by registered letter with acknowledgement of receipt. If it has not been possible to deliver the letter of notification to its addressee, the clerk's office invites the parties to proceed by way of service, in accordance with article R. 121-15 of the Code of Civil Enforcement Procedures.
Article R. 322-70 of the Code of Civil Enforcement Procedures :
"Advertising formalities are repeated in the forms and under the conditions set out in articles R. 322-31 to R. 322-36.
They shall also include the amount of the tender".
Article R. 322-71 of the Code of Civil Enforcement Procedures :
"On the day of the hearing, bids are repeated under the conditions set out in articles R. 322-39 to R. 322-49.
Advertising formalities are repeated in the forms and under the conditions laid down for sales by auction.
The only difference is that the posters will have to state the amount of the previous auction.
The auction hearing also takes place in the same way as a sale by auction.
Article R. 322-72 of the Code of Civil Enforcement Procedures :
"The successful bidder at the initial sale retains the costs charged at the time of the auction. After a period of two months following the auction, he is liable for interest at the legal rate on his bid until the new sale.
The person declared the successful bidder at the end of the new auction must pay the costs relating to the new auction.
The unsuccessful bidder will bear the taxed costs of the previous hearing, while the new bidder will bear the costs of the re-bidding.
A higher bid is possible, provided that the reiteration does not itself take place following a higher bid hearing, in accordance with the third paragraph of article R. 322-55 of the Code of Civil Enforcement Procedures:
"No higher bid may be received on the second auction.
Lastly, in the event of a repeat bid, the pursuing lawyer receives the full proportional fee, in accordance with Article III of Article A. 444-191 of the French Commercial Code :
"III. - In the event of a repeat bid, the pursuing lawyer shall receive the full fee provided for in I. "
Article L. 321-4 of the Code of Civil Enforcement Procedures :
"Leases granted by the debtor after the act of seizure are not enforceable against the pursuing creditor or the purchaser, regardless of their duration.
Any means may be used to prove that the lease has been in force for a longer period.
It should therefore be considered that, in the case of a property seizure, a lease entered into prior to service of the summons to pay in lieu of seizure may be enforced against the successful bidder, whereas a lease entered into after such service may not be enforced on the grounds that it was entered into in breach of the rule of law relating to the unavailability of the property.
However, the Court of Cassation has tempered this rule to the extreme, ruling that "the delivery of a summons to seize the property does not prohibit the conclusion of a lease or the tacit renewal of a lease previously concluded, and that the lease, even concluded after the publication of such a summons, may be set up against the successful bidder who was aware of it before the auction". (Cass. civ., 2nd, 27 Feb. 2020, no. 18-19.174, published in the Bulletin).
With this position, the Court of Cassation reiterates its established case law, the reasons for which are set out below (Civ. 3e, 15 January 1976, no. 74-13.676; Civ. 3e, 11 February 2004, no. 02-12.762; Civ. 3e, 23 March 2011, no. 10-10.804, Civ. 3e, 9 June 2016, no. 15-10.595).
It directly contradicts Article 4 of the General Provisions of the Terms and Conditions of Sale relating to seizures, the second paragraph of which states that "leases granted by the debtor after delivery of the summons to pay in the event of seizure are not enforceable against the pursuing creditor or the purchaser"..
If the successful bidder wishes to evict a tenant whose lease was signed after the summons was served, he will have to prove that he was unaware of the existence of the lease.
If, on the other hand, the lease is not enforceable against the successful bidder, then the latter may invoke the provisions of articles L. 322-13 and R. 322-64 of the Code of Civil Enforcement Procedures:
Article L. 322-13 of the Code of Civil Enforcement Procedures :
"The auction judgement constitutes a writ of eviction against the distrainee.
Article R. 322-64 of the Code of Civil Enforcement Procedures :
"Unless the terms and conditions of sale provide for the distrainee debtor to remain on the premises, the successful bidder may enforce the eviction order that he has against the distrainee and any of his occupants who do not have any rights enforceable against him from the time the price is paid or deposited and the taxed costs are paid.
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