To understand the role of lapses in the seizure of property procedure, we need to look back a little. Under the old rules, i.e. before the reform of the procedure introduced by the Order of 21 April 2006, it was common for proceedings to drag on, sometimes for several years or even decades.
At the time of the reform, the legislator wanted to set very strict deadlines for the procedure to ensure that such abuses did not recur: this is why failure to comply with almost all the deadlines likely to extend the duration of the procedure is sanctioned by the lapse of the order.
We will therefore look in turn at the different cases of obsolescence, its effects and the application for relief from obsolescence that may sometimes be submitted.
Lapse of a summons to pay in lieu of seizure
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 :
- Notification of the order to the spouse by no later than 1 January.e working day following its delivery to the debtor when the property belongs to the debtor but constitutes the family residence (R. 321-1 of the Code of Civil Enforcement Procedures),
- Publication of the summons in the property register within 2 months of it being served (R. 321-6 of the Code of Civil Enforcement Procedures),
- Delivery of the summons for the orientation hearing within 2 months of publication of the summons (R. 322-4 of the Code of Civil Enforcement Procedures),
- Notification of the summons to the registered creditors and their summons to the orientation hearing within 5 working days of delivery of the summons to the orientation hearing (R. 322-6 of the Code of Civil Enforcement Procedures),
- The terms and conditions of sale must be filed at the registry within 5 working days of the issue of the summons for the orientation hearing (R. 322-10 of the French Code of Civil Enforcement Procedures),
- Setting the date of the orientation hearing within a maximum of 3 months from the date of service of the summons to the orientation hearing (R. 322-4 of the Code of Civil Enforcement Procedures), it being specified that the minimum period of 1 month below which the text prohibits setting the date of the orientation hearing is not provided for on pain of nullity (the procedure may be shortened, not lengthened),
- The forced sale must be posted between 2 and 1 month before the auction hearing (R. 322-31 of the French Code of Civil Enforcement Procedures),
- Failure to requisition the sale on the day of the auction hearing (R. 322-27 of the Code of Civil Enforcement Procedures).
The effects of lapsing
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.
Caution! There should be no misunderstanding about the scope of the effects of nullity. It affects all procedural documents, i.e. documents issued by the parties. This means that a preliminary or incidental judgment that has resolved a dispute retains the authority of res judicata with regard to the dispute resolved.
Statement of lapse
Paragraphs 3 and 4 of the aforementioned article R. 311-11 state that :
"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 judge may therefore declare the contract null and void on legitimate grounds.
The decision to report is notified by the court registry.
Example: the creditor initiates proceedings for the seizure of a villa, without having the birth certificate of the debtor, who is a foreign national. When the summons to pay was issued, the debtor met the bailiff in person and told him that the villa was rented.
At the orientation hearing, the debtor asked the judge to declare the order null and void on the grounds that only an outbuilding located at the end of the plot was rented and that the villa itself constituted the marital home. As soon as he was informed, the creditor denounced the summons to the spouse and invoked the provisions of the aforementioned article R. 311-11. The court upheld the creditor's claim.
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