The purpose of the incidental hearing is to rule on any difficulties or disputes that have not been resolved at the hearing. orientation hearing. The distinction is important because the incidental judgment is very different from a referral judgment. We explain the specific features of this judgement, which is unique to the foreclosure procedure.
The conduct of the incidental hearing
Article R. 311-6, paragraph 3, of the Code of Civil Enforcement Procedures states that :
"If the challenge or incidental claim cannot be examined at the orientation hearing, the court clerk's office will summon the parties to a hearing by registered letter with acknowledgement of receipt within fifteen days of the challenge or claim being lodged.
The debtor may submit submissions to contest and incidental claims relating to acts subsequent to orientation hearing.
It must do so within 15 days of their completion (Civ. 2e, 26 June 2014, no. 13-20.193), in accordance with article R. 311-5 of the Code of Civil Enforcement Procedures.
This generally involves :
- Posting deadlines: legal advertising must be carried out between 2 and 1 month before the auction hearing. These deadlines are under penalty of nullityThe debtor must raise an incidental claim if he identifies any difficulties.
- La expiry of the summons to pay in lieu of seizure. This happens when the order has not been renewed before the expiry of the 5-year limitation period.
- The pursuing creditor's request for subrogation.
Statements of objections are filed with the auction clerk's office. They are examined at an incidental hearing, to which the parties are summoned by registered letter.
It should be noted that the referral judgement rules on incidental claims presented at the referral hearing.
The incidental judgment
The nature of the incidental judgment
The incidental judgment :
- Did not attend the orientation hearing,
- Does not record the amicable sale,
- Does not note the award.
The referral judgment has special characteristics as it includes a series of compulsory details.
In addition, events prior to the referral must be contested at the referral hearing. Otherwise, they can never be contested again. Events occurring after the referral must be contested within 15 days of the triggering event. The referral judgment therefore has the effect of establishing a chronology of the proceedings.
Caution! The incidental judgement can bear a striking resemblance to the referral judgement. In certain circumstances, it may order an auction.
Notification of the incidental judgment
Article R. 311-7, paragraph 2, of the French Code of Civil Enforcement Procedures states that :
"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 court 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 incidental judgement is notified by registered letter or recorded delivery by the clerk's office of the auctions when it establishes :
- The lapse of the order,
- Or the expiry of its effects.
In all other cases, it must be served by bailiff.
Publication of the incidental judgment
The provisions of the Code of Civil Enforcement Procedures do not require publication of the incidental judgment. Consequently, failure to publish will not be penalised.
However, Article 80 of the Decree of 14 October 1955 provides for the publication of all documents relating to the seizure of property:
"The following shall be published in the form of a note in the margin of the copy of the order for seizure :
[...]
8° Generally speaking, the various procedural acts relating to the order, such as subrogation in the proceedings, the judgment declaring the segregation of all or part of the seized immovables, etc.".
The publication procedures are similar to those for all publications to be made on the margin of the summons to pay in the event of seizure:
- A copy of the incidental judgment,
- Certification of the identity of the parties,
- A request for a CERFA no. 3233-SD building form,
- Payment of fees and taxes by cheque made payable to Treasury.
Appeal against the interlocutory judgment
The time limit for appeal is 15 days from notification of the judgement.
The appeal is then subject to the short time limit procedure set out in articles 905 to 905-2 of the Code of Civil Procedure.
An appellant who receives a notice of writ of summons must serve the statement of appeal within 10 days. The notice of service must include certain mandatory information relating to the obligation to appoint a lawyerand the reply period.
In addition, the appellant has a period of 1 month from receipt of the notice of determination in which to conclude. This shortens the usual 3-month period. The opposing party has the same 1-month period in which to respond.
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