Service of the summons to pay on the seized debtor

The procedures for serving a summons to pay for the seizure of property depend on the situation of the distrainee. Analysis of the procedures for serving the summons on the debtor.

Joint debtors

Firstly, if there are joint debtors, the order is simply served on each of them.

Married debtors

If the debtor is married, then everything depends on the matrimonial property regime and the location of the marital home.

The debtor married under the community property regime

If the debtor is married under the community property regime :

• If the debt is joint, then each of the spouses must be notified,

• If the debt belongs to one of the spouses and is part of the community, then service is to be made on each of the spouses, although the question is hotly debated and, alternatively, some colleagues issue a summons to the first spouse and serve the other with an adapted summons,

• If the debt is specific to one of the spouses and does not form part of the community, then service is to be made on each of the spouses, noting that case law confirms that payment of the debt of one of the spouses may be pursued against the joint property of both spouses (Civ. 2^e6 January 2012, no. 10-27.665).

The debtor is married under the separation of property regime.

If the debtor is married under the separation of property regime :

• If the debt is joint, then each of the spouses must be notified,

• If the debt belongs to one of the spouses, the debtor spouse must be notified, unless the property is the family residence.

The building is the family residence

If the property being seized belongs to one of the spouses, but constitutes the family residence, then the summons to pay for the seizure of the property must be notified to the non-owner spouse, no later than the first working day following service of the document, in accordance with the third paragraph of article R. 321-1 of the Code of Civil Enforcement Procedures: "Where a property owned by one of the spouses constitutes the family residence, the summons shall be served on the other spouse no later than the first working day following service of the document.

This time limit applies in the event that the summons to pay becomes null and void (article R. 311-11 of the French Code of Civil Enforcement Procedures).

• Read also: the lapse of a summons to pay for a property seizure
• Model: notice to the spouse of a summons to pay in lieu of seizure

The debtor in a cohabiting relationship

There is no provision requiring the debtor's cohabiting partner to be served with the summons to pay for the seizure of the property (Civ. 2^e30 April 2009, no. 08-12.105).

The deceased debtor

In the case of a deceased debtor, several texts must be applied.

Firstly, article 877 of the Civil Code: "A writ of execution against the deceased is also enforceable against the heir, eight days after it has been served on him".

The enforcement order must therefore be notified to the heir of the deceased debtor, after which the details of the summons to pay in the form of a seizure must be adapted in accordance with the provisions of article 36, 5°, of decree no. 55-1350 of 14 October 1955 for the application of decree no. 55-22 of 4 January 1955 reforming land registration: " 5. In the event of publication of a summons to serve as a seizure order for a property belonging to an estate against the successors of a deceased person, or of the subsequent auction judgement, production of the notarial deed or the certificate provided for in 3-b of this article is not compulsory, when the document intended to be kept in the registers of the land registry service only includes the mention of certification of the identity of the deceased.

In the case referred to in the previous paragraph, the formality is considered to be required against the deceased alone, for entries in the file and the issue of copies, extracts or certificates. The same applies to registrations of legal or judicial liens or mortgages required against the successors in title of a deceased person in respect of an immovable forming part of an estate, where the notarised certificate of transmission by death - or the division in lieu thereof, pursuant to article 29 (paragraph 4) of the decree of 4 January 1955 - has not yet been published".

The order will therefore mention not only the deceased, but also all those entitled to inherit, as well as the aforementioned article 36.

Publication will then be required only in respect of the deceased, whose identity will be duly certified.

Obviously, this solution only applies if the devolution of the estate has not yet been published in the property register. If it has, then the order for payment will be equivalent to a conventional seizure, targeting the heirs who have accepted the estate and who will have received prior notification of the writ of execution.