The "commandement de payer valant saisie immobilière", often referred to by the acronym CSI, is the procedural document that marks the start of the seizure of a property. Drawn up and served by a commissioner of justice (formerly a bailiff) at the request of a creditor, this act of seizure is subject to strict formalities and produces immediate and binding effects for the debtor. Issuing the writ is a decisive step, initiating a complex process that may lead to the sale of the property. Given the technical nature of this procedure, it is essential to tailor-made legal support for property seizures. The ISC is only the starting point for the foreclosure procedureEvery step of the way has its challenges.
Commandement de payer valant saisie (CSI): definition and role of a founding document
A summons to pay (commandement de payer) for the seizure of a property is the act whereby a court-appointed official, acting on behalf of a creditor with an enforceable title, orders the debtor to settle his debt. This act is not a simple formal notice; it constitutes the first act of execution and places the property under the control of the courts. As specified in article R. 321-1 of the French Code of Civil Enforcement Procedures (CPCE), the issuing of a summons is considered to be an act of disposal. In the absence of bids at the forced sale, the pursuing creditor may be declared the successful bidder for the property, which represents a significant risk. The CSI is fundamentally different from other types of seizure, such as seizure for sale of movable property or seizure of bank accounts, in terms of its purpose and the seriousness of its consequences.
The foreclosure procedure before the orientation hearing: key stages and deadlines
Between service of the summons and the orientation hearing, a number of crucial stages must be completed within strict deadlines. If these deadlines are not met, the entire procedure may lapse, wiping out the creditor's efforts.
Compulsory information in the summons and statement of claim
To be valid, the summons to pay must contain a series of mandatory details, listed in article R. 321-3 of the CPCE. Among the most important are: the nature of the writ of execution, the precise designation of the property seized, the appointment of a lawyer for the creditor, and the warning that the debtor has eight days to make payment. The deed must also include a detailed breakdown of the sums claimed (principal, costs, accrued interest). It is important to note that an error in this breakdown does not invalidate the deed; the debtor may, however, contest the amount of the claim at the orientation hearing. Each item of information is a condition of validity, and its omission may be used as a defence.
Service on the debtor and notification of third parties
The summons must be served directly on the debtor or, where applicable, on the third party purchaser of the property. If the property is a family residence, the debtor's spouse must be notified of the deed no later than the first working day following service. This notification formality is prescribed on pain of nullity. The creditor must also serve a second notice of the summons on the other creditors registered on the property. This notification, which is equivalent to a summons to appear at the orientation hearing, must be made no later than the fifth working day following the debtor's summons.
Publication of the order at the land registry office
To make the seizure enforceable against third parties, the summons to pay must be published at the land registry (formerly the mortgage registry) in the place where the property is located. This publication, which registers the deed in the property register, must take place within two months of service of the deed on the debtor. If this time limit is not observed, the summons will lapse. In the event of rejection of the formality by this service, article R. 321-7 of the CPCE provides for a mechanism to extend the deadline to allow the creditor to regularise the situation following rejection of the initial filing.
The description report and the conditions of sale booklet
Once the summons has been served, a court commissioner, who may be authorised to enter the premises, goes to the property to draw up a description of the building. This descriptive document, which details the composition, surface area and state of occupation of the property, is a key part of the terms and conditions of sale. This document, drafted by the pursuing creditor's lawyer and filed with the execution judge's registry, sets out the rules for the future sale. The creditor and his solicitor are responsible for drawing it up. Any errors or omissions, such as the absence of mandatory technical diagnostics, can be a source of dispute, even though the guarantee against hidden defects is excluded in the context of a compulsory sale.
The immediate effects of a summons to pay equivalent to a seizure
As soon as it is served on the debtor, and even more so once it has been published, the summons to pay produces major legal effects that considerably restrict the owner's rights over his or her property.
The unavailability of the property and the nullity of acts of disposal
The most direct effect of the summons is to render the property unavailable. Article L. 321-2 of the CPCE states that the debtor may no longer sell, give away or mortgage the seized property. This unavailability takes effect for the debtor as soon as the deed is served, and for third parties as soon as it is published. Any act of disposal carried out in breach of this rule is null and void and cannot be enforced against creditors or the successful bidder.
Seizure of fruits (rent) and the debtor's status as receiver
The seizure also extends to the "fruits" of the building, i.e. mainly the rents. Under article L. 321-3 of the CPCE, the debtor becomes the receiver. In practical terms, this means that the debtor must continue to receive the rents, but can no longer freely dispose of them. These sums will be frozen and will be added to the sale price at the time of distribution. The creditor has the option of asking the judge to deposit these rents for greater security.
Enforceability of leases entered into after publication of the summons
In principle, any lease entered into or renewed after publication of the summons to pay cannot be enforced against the successful bidder, as stipulated in article L. 321-4 of the CPCE. The purpose of this rule is to prevent the debtor from depreciating the value of his property by installing a tenant just before the sale. However, consistent case law has tempered this principle. In a noteworthy decision of 27 February 2020 (published in the Bulletin), the Court of Cassation ruled that such a lease could be enforceable if the winning bidder had been aware of it before submitting its bid. Proving this "knowledge" and the causal link therefore becomes a central issue in the event of a dispute.
The orientation hearing: the tipping point for the seizure
The orientation hearing is a decisive judicial stage. This is when the enforcement judge (JEX) rules on any debates and decides on the future of the property: amicable sale or forced sale.
The role of the judge and possible challenges by the debtor
Represented by a lawyer, the debtor can raise all his defences and objections at this hearing. These may be substantive disputes, such as the validity of the writ of execution or the amount of the debt, or formal disputes, such as the omission of a compulsory statement from the summons to pay in the debtor's name. Article R. 311-5 of the CPCE specifies that, barring exceptions, this hearing is the last opportunity to put forward most of these arguments.
Referral to amicable sale: a way out for the debtor
The distrainee debtor may seek authorisation from the enforcement judge to sell the property himself. This is the procedure for amicable sale with judicial authorisation, provided for in article L. 322-1 of the CPCE. To grant this authorisation, the judge must ensure that the sale can be concluded under satisfactory conditions. He sets a minimum price below which the property cannot be sold and gives the debtor four months to find a buyer and set a date for signing.
Referral to forced sale (auction)
If an amicable sale is not requested, is not authorised by the judge, or if it fails within the allotted time, the judge orders the forced sale of the property. This sale takes place by public auction at a special hearing, known as the auction. The referral judgement then sets the reserve price, which may be contested by the debtor if it is manifestly insufficient, and the date of the auction hearing, from which the one-tenth higher bid mechanism may potentially be implemented after the sale.
Analysis of procedural sanctions: nullity, nullity and lapse of time
The property seizure procedure is punctuated by imperative formalities and deadlines. Failure to comply with these is punishable by annulment, nullity or lapse, which are distinct concepts with radical consequences for the continuation of enforcement.
Invalidity on grounds of formal defect: the grievance requirement
Nullity is a sanction for an irregularity in the drafting of a document, such as the omission of a compulsory statement. However, the principle of "no nullity without prejudice" applies: in order for nullity to be declared, the debtor must prove that the irregularity has caused him concrete prejudice, for example by preventing him from exercising his rights of defence. The penalty of nullity is therefore not automatic.
Lapse: sanction for non-compliance with mandatory deadlines
Lapse is the most severe sanction. It affects the summons to pay if certain essential time limits are not respected, such as the two-month time limit for publishing the summons or the two-month time limit for summoning the debtor to the orientation hearing. Lapse retroactively annuls the summons and all subsequent procedural acts. The court may declare the order null and void on its own initiative or at the request of any interested party.
Expiry: the penalty for prolonged inaction
Once published, the summons to pay is valid for five years, as stipulated in article R. 321-20 of the CPCE, which came into force in 2012. If, at the end of this period, the sale has not been recorded by a judgment mentioned in the margin of the copy of the publication of the order to pay, the order to pay lapses. This lapse of the summons ceases to have effect, putting an end to the seizure. However, it may be interrupted or suspended, in particular by a judgment ordering the postponement of the sale.
Focus on distance periods (art. 643 CPC): an area of uncertainty
Article 643 of the Code of Civil Procedure provides for an increase in procedural time limits for parties who reside overseas or abroad (including within the European Union), by virtue of international treaties. However, the systematic application of these distance periods to the deadlines for seizure of property remains a subject of debate in the case law. Uncertainty as to whether they should be taken into account in assessing whether a seizure has lapsed constitutes a procedural risk that practitioners should assess carefully.
Managing specific debt situations: strategies and points to watch out for
The debtor's personal situation can complicate the foreclosure procedure. The matrimonial regime, a death or the status of sole trader impose specific rules and strategies.
Married debtors: the impact of the matrimonial property regime
If the seized property belongs to the community, the proceedings must be brought against both spouses. If the property is owned by one of the spouses, the summons is served on that spouse. However, if the property in question is the family residence, the document must be served on the non-owner spouse. Under the system of separation of property, the seizure may only relate to the personal property of the debtor spouse.
Deceased debtor: pursue seizure against the estate
If the debtor dies, the procedure may continue, but the steps to be taken vary. If the heirs are known and have accepted the estate, the seizure is directed against them, after service of the writ of execution. If the heirs are unknown or if the estate is vacant, the creditor must appoint a curator for the vacant estate, against whom the proceedings will be brought.
Sole traders: main residence exempt from seizure
Article L. 526-1 of the French Commercial Code makes the principal residence of sole traders exempt from seizure by operation of law in respect of debts incurred in the course of their business. Other property not used for business purposes may be protected by a Notarised Declaration of Unseizability (DNI). A seminal ruling by the Cour de cassation (Com. 17 nov. 2021, no. 20-20.821) confirmed that the protective effect of the DNI persists even after the business has ceased. This protection is linked to procedures for dealing with business difficulties, such as reorganisation or collective liquidation, which are governed by a specific plan.
Impact of recent reforms on foreclosures
The law governing the seizure of property has been affected by several major reforms in recent years, which have modernised and relaxed certain procedural rules.
The Justice Act of 23 March 2019: combining seizures and private sales
The 2018-2022 programming and reform law for the justice system, published in the Journal Officiel, has introduced two notable innovations to the legislative framework. Firstly, it has relaxed the proportionality rule by authorising the creditor to seize several of the debtor's properties if the value of just one is insufficient to cover the debt. Secondly, it opens up the possibility of carrying out a private sale, with the agreement of the parties, even after the judge has ordered the forced sale, offering greater flexibility in finding a solution to the proceedings.
The 2021 reform of security law and the fate of real guarantees
The Order of 15 September 2021 reforming the law on sureties, followed by its implementing decree, has clarified the system of "security in rem for others", formerly known as "real surety". In its new version, the text of article 2325 of the Civil Code confirms that when a person pledges one of his assets as security for the debt of another, the creditor can only seize that specific asset, and not the other assets of the guarantor. This reform has a direct impact on recent reforms in security law and their practical application. This standard is crucial when the creditor is an administrative authority, such as the Treasury.
Frequently asked questions (faq)
How do I contest a summons to pay for a property seizure?
The debtor cannot act directly against the summons as soon as it is received. They must wait for the creditor to summon them to appear at the orientation hearing. It is at this hearing, and necessarily through a lawyer, that they will be able to contesting a summons to pay in lieu of seizure. Understanding the role and cost of the foreclosure lawyer is essential.
What are the costs of a foreclosure procedure?
The costs of enforcement are, in principle, borne by the debtor, as set out in article L. 111-8 of the CPCE. They include the costs of the court commissioner, lawyer, publication, diagnostics, etc. However, if the creditor incurs costs that are clearly unnecessary, or for which there is no proven benefit, they may remain payable by the creditor.
Can you sell your property yourself after receiving a summons to pay?
Yes, but not freely. The unavailability of the property prevents a conventional sale. At the orientation hearing, the debtor must ask the enforcement judge for authorisation to proceed with an out-of-court sale. If he is able to obtain this authorisation, he will have a period of time in which to complete the sale under the supervision of the judge.
What happens if I apply to the debt commission?
Under certain conditions, filing a case with the Commission de surendettement (excessive debt commission) can suspend the property seizure procedure. Admissibility of the case is a key stage, and a decision by the competent administrative authority is required. It is crucial to inform the enforcement judge of this decision. This link between the collective procedure for dealing with the over-indebtedness of individuals and individual enforcement is a major point of vigilance.
The seizure of property procedure is complex and has serious consequences. When faced with a summons to pay, it is essential to react quickly and in an informed manner. Do not hesitate to contact us for an analysis of your case; our site provides an initial level of information and a link to a suitable consultation.
Sources
- Code of civil enforcement procedures (current version)
- Civil Code (articles relating to security law)
- Commercial Code (section on unseizability)
- Relevant case law from the Bulletin de la Cour de cassation et des cours d'appel
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