Receiving a summons to attend an orientation hearing (AAO) marks a critical turning point in the property seizure procedure. This document, issued by a court commissioner at the request of the pursuing creditor, summons the distrainee debtor to appear before the enforcement judge. It is at this pivotal hearing that the fate of the property will be sealed: whether the debt is of professional or personal origin, as in the aftermath of a divorce and the winding up of the matrimonial property regime, the case will move towards either an amicable sale or a forced sale at public auction. Managing this stage is crucial to the outcome.
It is important not to confuse this hearing with the one that bears the same name in general civil proceedings before the judicial court (formerly the tribunal de grande instance). This homonymy, introduced by the decree of 11 December 2019 reforming civil procedure, can lead to confusion, particularly for someone who is uninitiated or going through a complex personal situation such as divorce proceedings. The summons to the orientation hearing for a property seizure is subject to specific rules and deadlines, which must be mastered if the debtor's rights are to be defended.
The strict time frame of the summons to the orientation hearing
Property seizure proceedings are governed by strict deadlines, failure to meet which can have drastic consequences, including the invalidity of the deeds. The summons to the orientation hearing is no exception to this strict requirement.
Time limit for issuing the summons
The pursuing creditor has a strict deadline for taking action. The summons must be delivered to the debtor within two months of the publication of the summons to pay in lieu of seizure to the Land Registry. Compliance with this deadline is crucial: if the creditor fails to comply, article R. 311-11 of the French Code of Civil Enforcement Procedures stipulates that the summons to pay lapses. This sanction puts an end to the seizure procedure, obliging the creditor, if he wishes to continue, to restart the entire procedure from the beginning.
Setting the hearing date
The summons itself sets the date for the orientation hearing. This date cannot be chosen freely. The Code of Civil Procedure imposes a precise "range": the date of the hearing must be set within a period of between one and three months from the issue of the summons. The purpose of this provisional measure is to give the debtor sufficient time to organise his defence and, if necessary, appoint a lawyer from the relevant bar.
These time limits may be extended depending on the debtor's place of residence, in accordance with Article 643 of the Code of Civil Procedure:
- This period is extended by one month if the debtor lives in an overseas department or collectivity.
- This period is increased by two months if the debtor lives abroad, whether he is a national of the European Union or of another nationality.
In these cases, the hearing should therefore take place between two and four months, or between three and five months, after the summons. It should be noted that while failure to comply with the maximum period of three months will result in the order lapsing, the Court of Cassation has ruled that the minimum period of one month is not required on pain of lapsing (Cass. 2e civ., 21 Feb. 2019, no. 17-27.487). A summons for a hearing that is too close together constitutes a formal irregularity that may be raised, but it does not automatically terminate the proceedings.
The formal content of the summons: a guarantee of the debtor's rights
The summons to a referral hearing is a legal document whose formality is strictly regulated by law. Article R. 322-5 of the Code of Civil Enforcement Procedures lists a series of compulsory details designed to inform the debtor of his situation, his rights and the possible outcomes of the proceedings. Failure to include any of these details may result in the deed being declared null and void, a penalty that is similar to a procedural nullity.
Mandatory information in the writ of summons
In addition to the information common to all writs of summons set out in article 56 of the Code of Civil Procedure (identification of the parties, subject of the claim), the document must contain the following information:
- Place, date and time of hearing : To enable the debtor to appear at the right address on the right day at the right time.
- Purpose of the hearing : Indication that the hearing will examine the validity of the seizure, rule on any disputes and set out the terms and conditions of the procedure, whether it involves a referral to an amicable or forced sale.
- Warning of the consequences of absence : A clear indication that if the debtor is neither present nor represented by a lawyer, the proceedings will be directed towards compulsory execution based solely on the information provided by the creditor, a dramatic outcome, particularly in the context of a divorce where the property is the family home.
- Consultation of the terms and conditions of sale : A summons to acquaint oneself with this essential document, filed at the registry of the enforcement judge or at the office of the debtor's lawyer, in order to guarantee full access to the information.
- Price indication : Indication of the amount of the reserve price set by the creditor, and the possibility for the debtor to contest it if it is clearly insufficient.
- Possibility of amicable sale: The warning that the debtor may ask the judge for authorisation to sell his property himself, provided that he can justify that the sale can be made under satisfactory conditions.
- Obligation to be challenged by a lawyer : A statement, in clearly visible lettering, that any challenge must, on pain of inadmissibility, be made by a lawyer registered with the appropriate bar, at the latest at the orientation hearing.
- Information on over-indebtedness : The possibility of applying to the judge of the over-indebtedness commission to request a suspension of the procedure, an option often considered in situations of post-divorce financial difficulties.
- No need for a lawyer for a request for amicable sale : The clarification that, for this request alone, the debtor is not required to be represented by a lawyer.
- Legal aid : The possibility of legal aid, to guarantee fair access to justice, subject to a means test.
Penalties for non-compliance with formalities
If any of these details are omitted, the writ of summons will be null and void. However, this is a case of nullity on formal grounds. This means that the court will only declare the summons null and void if the person invoking it, generally the debtor, proves that the irregularity has caused him a prejudice, i.e. a direct prejudice in the exercise of his rights of defence.
The crucial issues involved in setting the reserve price
Setting the reserve price is a decisive step, initiated by the pursuing creditor. This amount, which must appear in the summons, is the starting point for the auction in the event of a forced sale. Determining it is not without risk for the creditor himself.
The process for setting the amount
The creditor shall determine the amount of the upset price on the basis of the information gathered when establishing the descriptive minutes of the property. This document, drawn up by a court commissioner (or bailiff), gives details of the property, its condition and the conditions in which it is occupied, thus enabling an initial valuation to be made. At the orientation hearing, the debtor has the opportunity to contest this valuation if he considers it to be manifestly insufficient in relation to the market value.
The risk of no bid and its consequences for the creditor
Overpricing is a risky gamble. Article L. 322-6 of the French Code of Civil Enforcement Procedures is unambiguous: "In the absence of a bid, he [the pursuing creditor] is automatically declared the successful bidder for this amount.
Being declared a compulsory bidder can put the creditor in a very delicate situation for two main reasons, and the situation of this compulsory bidder can quickly become a burden:
- The corporate purpose of the creditor company : Many companies, particularly banks and co-owners' associations, do not have property ownership as their corporate purpose. Becoming the owner of a seized property may put them in breach of their own articles of association.
- The obligation to pay the price: The successful bidder, even if he is the creditor, must pay the auction price. He may, of course, apply the legal set-off against his own claim, but if the price is higher than the amount of his claim, he will have to pay the difference to the distrainee debtor.
Example 1: A co-owners' association is suing a co-owner for €5,000. By setting the hammer price at €50,000, the syndicate runs the risk of being declared the winning bidder if there are no bids. After compensation, it would owe the co-owner €45,000, a complex financial and legal situation for the syndicate, especially if the co-owner is in the midst of divorce proceedings.
Example 2: A bank is declared the winning bidder for a property, even though its articles of association prohibit it from doing so. It then has to appoint a specialised subsidiary to bid higher and take over the auction, which generates additional costs and complications for this unwilling bidder.
A good bidding strategy is therefore essential, striking a balance between attracting bidders and protecting the interests of the debtor and the creditor.
The conduct and outcome of the orientation hearing
The orientation hearing is the heart of the judicial phase of the seizure of property. It is at this point that the enforcement judge rules on any disputes and decides how to proceed.
The central role of the enforcement judge
At the hearing, the enforcement judge's first task is to check that the procedure is in order and that the terms of the seizure are valid. He ensures that the creditor has a writ of execution, even a provisional one, establishing a liquid and payable debt. He hears the parties, the seized debtor and the pursuing creditor, as well as any registered creditors who may have intervened.
Purging protests: a step not to be missed
One of the fundamental roles of the orientation hearing is to purge all disputes. Article R. 311-5 of the Code of Civil Enforcement Procedures stipulates that any dispute or incidental claim must be raised at this hearing at the latest, in the form of a lawyer's submission. Once this stage has been reached, it will no longer be possible to challenge the validity of the summons to pay, the amount of the claim (for example, unpaid child support following a fault-based divorce) or any other irregularity in the previous proceedings. The aim of this rule is to avoid delaying tactics and make the proceedings more secure. For the debtor, this is the last opportunity to put forward his substantive arguments.
The two possible outcomes: amicable sale or forced sale
At the end of the hearings, the judge issues a ruling on guidance and provisional measures, which may take one of two directions:
- Authorisation to sell by mutual agreement : If the debtor so requests and can show that serious efforts are being made to sell the property at a market price, the judge may authorise the sale. He will then set a minimum price and a deadline (usually four months) for the sale to be completed.
- The compulsory sale order : If there is no request for an out-of-court sale, if the request is rejected, or if the debtor's objections are rejected, the judge orders the forced sale of the property by public auction (adjudication). The judge then sets the date of the auction hearing.
This decision by the court judge constitutes a real procedural crossroads that definitively determines the fate of the seized property.
What should I do as a debtor when faced with a summons to appear at an orientation hearing?
Receiving such a summons is an anxiety-provoking situation. However, debtors are not helpless and have a number of levers at their disposal to defend their interests, provided they act quickly and in an informed manner.
The importance of legal representation
Except in the case of a simple request for an out-of-court sale, representation by a lawyer is compulsory for any dispute or claim before the enforcement judge. Attempting to defend oneself alone on complex points of law would be illusory and doomed to failure, as disputes must be put forward in written, reasoned submissions, after the case has been properly handled and prepared by this legal professional. The assistance of a master or lawyer competent in property seizuresThis is the best way to ensure that all your defence options are explored. Unlike traditional civil proceedings, where the juge de la mise en état (JME) manages the investigation, here the orientation hearing concentrates the debates. This is a fundamental distinction, particularly for spouses in judicial divorce proceedings who are often familiar with the intervention of the JME in their other proceedings.
Possible protest strategies
At the orientation hearing, there are several possible avenues of challenge, depending on the case:
- Invalidity of procedural documents : Check that the summons to pay or the writ of summons comply with the formalities required by law. The form of each document is crucial.
- Contesting the claim : Questioning the amount claimed by the creditor, raising a possible statute of limitations or the absence of a valid writ of execution, a crucial point in the aftermath of a divorce where joint debts are often a point of dispute.
- Contesting the upset price : Demonstrate, with expert evidence, that the upset price is clearly too low and prejudices the debtor's interests.
Requesting an out-of-court sale: an option to be weighed carefully
An amicable sale may seem a preferable solution to a forced sale, as it often enables a better price to be obtained and gives the debtor an active role. However, it is subject to strict conditions and a time limit. Before making such a request, it is essential to have already taken serious steps (mandate to sell, offer to purchase) to convince the judge that the project is realistic. Without preparation, such an application is unlikely to succeed and could waste precious time.
The property seizure procedure and its orientation hearing are complex and fraught with consequences, particularly when they take place in the context of a divorce. Every stage, every deadline and every mention counts. Support from our law firm, which specialises in property seizures, will ensure that your defence is rigorous and that your strategy is tailored to your personal situation.
Sources
- Code of civil enforcement procedures (in particular articles L. 311-1 et seq., R. 311-1 et seq.)
- Code of civil procedure (in particular article 643)
- Civil Code
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