The referral judgement settles the disputes raised by the debtor and directs the seizure towards an amicable or forced sale. The effects of this judgment are significant, as it eliminates any disputes that could and should have been raised at the referral stage. Analysis of this decision at the heart of the foreclosure procedure.
The effects of a guidance order
Article R. 311-5 of the French Code of Civil Enforcement Procedures states that :
"Unless otherwise stipulated, no challenge or incidental claim may be lodged after the orientation hearing provided for in article R. 322-15, unless it relates to procedural documents issued after that hearing, in which case the challenge or incidental claim must be lodged within fifteen days of notification of the document. In this case, the challenge or incidental claim must be lodged within fifteen days of notification of the document.
The referral ruling clears all disputes and incidental claims. Once it has been issued, the debtor's objections are limited to actions taken after the referral. These disputes must be lodged within 15 days of the event giving rise to the dispute. This is a very short period and gives rise to many difficulties in practice.
Case law has provided important clarifications:
- Challenges presented by the debtor for the first time before the Court of Appeal are inadmissible (Civ. 2e, 1 October 2009, no. 07-18.630).
- The Court of Appeal must declare this inadmissibility of its own motion (Civ. 2e, 11 March 2010, no. 09-13.312).
The rule does not apply to third parties to the proceedings (Civ. 2, 4 December 2014, no. 13-24.870).
The irreversible nature of the referral order explains why we always recommend that the debtor take the following steps assisted by a lawyer.
The res judicata effect of the referral judgment
We have seen thatat the orientation hearing, the enforcement judge checks that the procedure is in order. It shall also rule on disputes and incidental claims by the debtor and the registered creditors.
In addition, the referral order must state the amount of the claim. The text is precise and expressly uses the term mention :
"The referral judgement shall state the amount of the debt owed to the creditor. The debtor must pay the debtor the principal, costs, interest and other accessories. (article R. 322-18 of the Code of Civil Enforcement Procedures)
The use of the term " mentions " was at the root of a doctrinal controversy.
The enforcement judge does not have the power to order the debtor to pay. He merely monitors the enforcement of a decision handed down by another judge. In other words, he is subject to the res judicata effect of another judge's decision. Under these conditions, are his own decisions res judicata?
Readers may wish to consult Serge BRAUDO's excellent Legal Dictionary for an analysis of the concept of res judicata.
For a long time, case law gave a qualified answer to this question. The Court of Cassation considered that its decisions had the force of res judicata only when they settled a dispute.
This led to difficult situations, as it became possible to call into question the amount of a claim. after the implementation of a recovery procedure. A seizure was therefore validated for a given amount, which could be called into question. a posteriori. To put an end to the practical difficulties this created, the Court of Cassation eventually changed its case law.
So now :
- The enforcement judge must state the amount of the claim. He is not bound by the amount stated in the summons to pay in the form of a seizure (Civ. 2e, 24 September 2015, no. 14-20.009).
- The referral judgment is res judicata as to the amount of the claim, even if there is no dispute on this point (Civ. 2e, 24 September 2015, no. 14-20.009).
- Decisions of the enforcement judge always have the force of res judicata (request for opinion no. P 18-70.004, opinion no. 15008)
The different types of orientation judgements
At the orientation hearing, the enforcement judge may authorise an out-of-court sale or order a sale by auction.
Guiding judgment authorising out-of-court sale
Article R. 322-21 of the French Code of Civil Enforcement Procedures states that :
"The enforcement judge who authorises the out-of-court sale sets the price below which the property may not be sold in view of the economic conditions of the market and, where applicable, the specific conditions of the sale.
The judge charges the costs of proceedings at the request of the pursuing creditor.
It sets the date of the hearing at which the case will be recalled within a period that may not exceed four months.
At this hearing, the judge may only grant additional time if the applicant can provide proof of a written commitment to purchase and to allow the deed of sale to be drawn up and concluded. This period may not exceed three months.
Article R. 322-20 of the Code of Civil Enforcement Procedures adds that :
"An application for the amicable sale of the property may be submitted and judged before service of the summons to appear at the orientation hearing, provided that the debtor brings into question the creditors registered on the property.
The decision granting the application suspends the course of the enforcement proceedings, with the exception of the period allowed for registered creditors to declare their claims.
The judgment authorising the out-of-court sale sets the price below which the property may not be sold.
In addition, the judge sets the date for a reminder hearing within a period that cannot exceed 4 months.
In practice, the debtor often has a longer period. In fact, the 4-month period is counted from the deliberation, which itself takes place several weeks after the pleadings hearing. At the reminder hearing, the debtor may again have a longer period for the same reasons.
This judgment suspends the course of the proceedings (Civ. 2e, 23 October 2008, no. 08-13.404).
The suspension of proceedings will result in the suspension of the limitation period for the summons to pay for the seizure of the property. This suspension takes effect from the date of publication of the judgment in the margin of the summons.
Guiding judgment ordering the sale by auction
Article R. 322-26 of the French Code of Civil Enforcement Procedures states that :
"When the enforcement judge orders a compulsory sale, he sets the date of the hearing at which it will take place within a period of between two and four months from the date of his decision.
The judge shall determine the procedures for visiting the property at the request of the pursuing creditor.
The judge sets a date for the auction within a period of between +2 and +4 months from the date of deliberation.
It authorises the inspection of the property in accordance with the terms and conditions it sets. This usually takes place within the fortnight preceding the sale. The bailiff (commissaire de justice) is always assisted by the police and a locksmith.
Notification of the referral decision
Article R. 311-7, paragraph 2, of the 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.
Le orientation judgment ordering forced sale and incidental judgments must be served.
However, the a referral judgment ordering an out-of-court salethe judgment declaring the order null and void and the judgment declaring that the commandment has lapsed are notified by the court registry to the parties and their lawyers by registered letter.
Publication of the referral decision
Article 80, 3°, of Decree no. 55-1350 of 14 October 1955 states that :
"The following shall be published in the form of a note in the margin of the copy of the order for seizure :
[...]
3° The referral judgment;".
There is no penalty for failing to publish the order, but it does inform third parties that the pursuing creditor has taken the necessary steps.
Publication should be requested by sending the original and a copy of the deed to be published, together with certification of the identity of the parties and, if necessary, a request for a statement of formalities (CERFA no. 3233-SD), to the relevant land registry, together with a cheque made payable to Treasury in the amount of :
- 15 for the publication,
- 12 per building and/or co-ownership lot for the building sheet,
- 2 € postage for the return of the building form.
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