To avoid having your property seized, you need to fight hard at first instance. If you appeal, it's too late.
I. The first instance is where it all counts!
Property seizures are complex and require the involvement of skilled professionals to understand the specifics and offer you the best possible service. full legal support. It is important to remember this.
A. The rule of concentration of claims at the orientation hearing
The provisions ofArticle R311-5 of the Code of Civil Enforcement Procedures are clear:
" Unless otherwise provided, no challenge or incidental claim may be lodged after the orientation hearing provided for in article R. 322-15 unless it relates to procedural acts subsequent to the notification. In this case, the challenge or incidental claim must be made within fifteen days of notification of the document."
This rule of concentration of claims at first instance is particularly severe. As the poet said: "Plus tard, il sera trop tard" (Jacques Prévert, "Embrasse-moi", 1900).
B. Immediate identification of defences at the orientation hearing
The heavy artillery must therefore be deployed as soon as the summons for the orientation hearing is issued.
This is particularly true if the property seizure is based on an enforceable copy of an authenticated loan deed. The debtor has not been the subject of any court decision condemning him. They have not yet had the opportunity to defend themselves. The ground is still untouched by legal debate.
The stakes involved in a seizure of property are high, as the debtor ends up dispossessed of his property.
article L. 213-6 of the Code of Judicial Organisation nevertheless provides for the possibility for the debtor to raise disputes arising from the seizure of property directly before the JEX. even if they relate to the substance of the law and the resulting distribution procedure.
Provided they are not time-barred or inadmissible, all claims under bank law must be asserted.
So don't hesitate to raise :
- the validity of the acceleration,
- compliance with the provisions of the SCRIVENER Act,
- nullity of the deed of loan...
A full study of the defences is essential at this stage. Only a rigorous analysis of the situation can prevent the sale and have the seizure annulled.
II. On appeal, the lawyer's hands are tied!
A. The Court of Appeal's working method
The Court of Appeal uses a very specific method to assess the admissibility of the debtor's arguments.
It repeats the conclusions of the first instance and carries out a comparative analysis. If the argument was not raised at first instance, it is inadmissible.
This working methodology is sometimes referred to in case law for educational purposes:
" For all intents and purposes and in accordance with Article R311-5 of the Code of Civil Enforcement Proceedings, the court requested disclosure of the submissions made by the parties at first instance. These submissions were communicated. There is no reason to apply the aforementioned article in the absence of new claims or pleas. " (CA Aix en Provence, 25 May 2023, RG 22/13450).
B. Examples of inadmissibility
1. Omission of certain means
If the debtor has confined himself to seeking time limits before the enforcement judge, the Court of Appeal will not hear his new challenges, which relate to the amount of the claim.
This is a serious sanction. It leads to the rejection of an argument that is nonetheless well-founded.
The following example from the case law is a good illustration of this. The Court of Appeal penalises the omission by the debtor at first instance of a plea that could have been effective if it had been presented earlier:
" In this case, Mr X's submissions at first instance, as mentioned above, were aimed solely at obtaining time to pay off the debt.
The appellant must therefore be deemed inadmissible with regard to his new challenges and claims, relating to the challenge to the forfeiture of the term and the quantum of the debt, even if a more precise breakdown of the amounts does indeed deserve to be provided, an amicable sale which had not been requested at first instance and which, moreover, still does not appear in the operative part of his pleadings, the non-payability of the debt in the absence of formal notice being superabundantly observed that copies of the letters of 6 July 2020 are produced by the pursuing creditor with their acknowledgements of receipt." . (CA Aix en Provence, 24 November 2022, no. 2022/772).
It is therefore clear that the appellant debtor's lawyer's hands are tied by the arguments put forward at the orientation hearing.
2. Failure to appear at first instance
Worse still, if the debtor does not appear at first instance, he loses virtually all chance of being able to defend himself effectively on appeal. Only exceptional remedies can then be used to challenge a final judgment.
The only remaining grounds are the ex officio verifications that the enforcement judge must carry out to ensure that the case has been properly referred to him.
Cabinet SOLENT AVOCATS systematically checks for the presence of an anatocism clause in property loan contracts governed by consumer law.
This is the last line of defence against the intransigent article R. 311-5 mentioned above!
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