Summons to pay for the seizure of property (CSI)

The "commandement de payer valant saisie immobilière" (sometimes abbreviated to CSI) is the procedural document that initiates the property seizure procedure. It is an act that the creditor must prepare with great care. For the debtor, its effects are as numerous as they are important.

Particulars of the summons to pay for the seizure of property

The summons to pay in the form of a seizure must include several types of compulsory information.

• A summons to pay is a document issued by a bailiff. Bailiff's documents must include certain mandatory information, as set out in article 648 of the Code of Civil Procedure.
• It initiates enforcement proceedings. All writ of execution must indicate the creditor, the debtor, the writ of execution and the amount of money owed.
• More specifically, it initiates property seizure proceedings. It will include certain information specific to this procedure. All of this is described in article R. 321-3 of the Code of Civil Enforcement Procedures.
• Finally, it must be published in the land registry. The land registry will only accept publication if the deed meets certain conditions. These conditions are described in the decree of 4 January 1955 on land registration.

The order must therefore include the following information:

• The date and nature of the enforcement order.
• The designation of the creditor and debtor, in accordance with Articles 5, 6 and 34 of the Decree of 4 January 1955.
• The designation of the bailiff (commissioner) with his address and signature.
• The incorporation of the pursuing creditor's lawyer, which entails election of domicile at his address. The term "constitution" refers to the fact that the lawyer represents his client before a court.
• A breakdown of the sums due in principal, costs and interest, with an indication of the rate applied to interest.
• A warning to pay within 8 days. This period may be extended in certain cases, as we shall see.
• Designation of seized properties. The term "property" is used here to refer to any type of real estate: land, flats, houses, sheds, etc.
• An indication that the property is unavailable from the time the summons is served. Unavailability means that the property can no longer be sold, given away, etc.
• An indication that the debtor may seek a buyer or give a mandate to do so. However, an out-of-court sale will be subject to authorisation by the enforcement judge.
• The summons to provide all the information relating to the lease, if there is one.
• An indication that the bailiff may enter the premises to draw up the descriptive report.
• Indication of the court with territorial jurisdiction.
• The possibility of applying for legal aid, and the benefit of an over-indebtedness measure.

The 8-day payment period is extended to 1 month if the seizure is against a mortgage guarantor. This is where a third party has given one of its properties as security for the debtor's debts.

Penalties for errors in the information contained in the summons to pay for the seizure of property

All the compulsory details of the summons to pay in the form of a seizure are prescribed on pain of nullity.

Invalidity will only be declared if the error has caused the debtor to suffer (Civ. 2e, 30 April 2009, no. 08-12.105).

As an exception to the rule, an error in the calculation of the sums due is never a ground for nullity.

Delivery of the summons to pay for the seizure of property

The effects of issuing an order

For the creditor, service of the summons is an act of disposal.

A disposal involves the transfer of rights that may have the effect of reducing the value of an asset.

This definition applies to the summons to pay for the seizure of property. If there are no bids at the auction hearing, the pursuing creditor is declared the successful bidder. The auction price will then be equal to the amount of the reserve price.

Foreclosing on a property is therefore risky for the pursuing creditor.

The procedures for issuing a summons depending on the debtor's situation

The debtor's situation may have an impact on how the summons is served. There are several possible scenarios.

Service of the summons to pay for the seizure of property on the debtor under seizure

Firstly, the command can be served on the distrainee debtor. The latter's situation must therefore be analysed carefully.

Service of the summons on a debtor married under community law

• If the debt belongs to one of the spouses and is included in the community, each of the spouses must be notified.
• If the debt belongs to one of the spouses and is not part of the community property, each of the spouses must be notified. Case law confirms that payment of a debt owed by one of the spouses may be pursued against community property (Civ. 2e, 6 January 2012, no. 10-27.665).

Service of the summons on a debtor married under the separation of property regime

• If the debt is joint, the summons is served on each of the spouses.
• If the debt belongs to one of the spouses, it is served on the debtor alone.
• If the debt belongs to one of the spouses, and the property is the family residence, it is notified to the spouse within 24 hours of service on the debtor. This time limit applies on pain of nullity.

Please note that the last two assumptions apply if the debtor spouse is the sole owner.

Service of the summons on the deceased debtor

In the event of death, there are three options:

• The devolution of the estate has been published in the property register.

The heirs are therefore known and it will be sufficient to continue the proceedings against them. The creditor must first serve them with the writ of execution (article 877 of the Civil Code).

• The devolution has not been published and the heirs are not known.

The creditor must appoint the Administration des Domaines as trustee of the vacant estate. The seizure procedure may be pursued against the Domaines.

• The devolution has not been published, but the heirs are known.

The creditor will have to serve them with a summons to elect, in order to obtain the list of accepting heirs. The writ of execution should then be served on them.

The wording of the summons will then be amended. The creditor will refer to article 36 5° of the decree of 14 October 1955. Publication will be required against the deceased, who is the only person known to the property register.

In fact, the details on the purchase order and in the file must be identical. If there is a discrepancy, the land registry will reject the publication. If the debtors are not known to the register, publication will be impossible. This is why publication will be required against the deceased.

Service of the summons on the third-party purchaser

Mortgages are guarantees attached to real estate. When a property changes hands, the creditor can pursue a seizure against the new owner. This is why the notary, when registering a sale, is responsible for cancelling all mortgage registrations.

The terms of service of the order will be modified:

• A summons to pay will be served on the debtor. This summons will specify that a summons to pay in the form of a seizure of property has been served on the third-party purchaser.
• A summons to pay (commandement de payer) will then be served on the third-party buyer. This summons will contain the information described above, and will refer to articles 2456 and 2463 of the Civil Code.

Publication of the summons to pay for the seizure of property

Summons to pay in lieu of seizure must be published in the property register within two months of service on the debtor.

The lawyer may request its publication before the expiry of the period of notice to pay.

If the publication is rejected, the publication deadline is increased. This increase is equal to the number of days elapsed between notification of the rejection and its rectification.

The effects of a summons to pay in lieu of seizure of property

The meaning of the commandment has a number of effects for the debtor.

Nullity of acts of disposition

The meaning of the commandment makes the property unavailable. The debtor may not encumber it with rights in rem (e.g. mortgages) or dispose of it (e.g. sale, gift).

The unenforceability of leases

Leases entered into prior to service of the summons can still be enforced.

Leases entered into after such notification may be enforced against the purchaser if the latter was aware of them before buying (Cass. civ., 2nd, 27 Feb. 2020, no. 18-19.174, published in the Bulletin).

The pursuing creditor's lawyer must ask the judge to declare the lease unenforceable in order to protect the successful bidder.

Seizure of income (rent)

The fruits of the property are immobilised from the date of service. The debtor is the sequestrator.

In law, the concept of fruits refers to the goods produced by a thing. This may be fruit (e.g. an orchard), rent (e.g. a lease), etc.

They will be added to the sale price, to be distributed with it.

In practice, the debtor will rarely keep the fruits. The creditor therefore has the option of ordering the fruits to be deposited with a receiver. The text does not specify which receiver is involved. The creditor will generally appoint the same receiver as the one appointed for the sale price.

If the fruit is likely to spoil (e.g. apples), the judge may authorise it to be cut up and sold by any means.

Sequestration of the property

The debtor retains the use of the property until the sale, unless it is rented out.

If necessary, it will become the receiver. He may not make any changes.

Enforceability of a summons to pay in the form of a seizure against third parties

The command is enforceable against third parties from the date of its publication in the property register.

The duration of the effects of a summons to pay in lieu of seizure of property

The time limit for expiry of the effects of a summons to pay in the form of a seizure of property

A summons to pay valid as a seizure is valid for 5 years. This period runs from the date of its publication in the property register.

Expiry of a summons to pay for a property seizure

The command may expire if it is not extended before it expires.

The court may raise the issue of lapse of its own motion (Civ. 2e, 21 March 2019, no. 17-31.170).

It may be requested for the first time before the court, even if it was acquired at the orientation hearing (Civ. 2e, 18 October 2018, no. 17-21.293).

The expiry date has numerous effects.

It does not deprive the summons of its effect of interrupting the limitation period.

The summons interrupts the limitation period until the decision that it has lapsed (Cass. 2e civ., 1 March 2018, no. 17-11.238, Bull. 2018, II, no. 42).

Application for a declaration that the summons to pay in lieu of seizure has lapsed

The text does not specify how the judge should be seized of an application for lapse of time.

In practice, a lawyer must intervene and present submissions.

Extension of the effects of a summons to pay in lieu of seizure

The creditor can ask the judge to extend the effects of the summons. If so, the effects of the order will be extended for a further period of 5 years.

The extension runs from the date of publication of the extension decision in the property register (Cass. 2e civ., 19 Oct. 2017, no. 16-15.236, Published in the bulletin).

The request to extend the effects of the summons is an incidental request that can be made after the orientation hearing (Civ. 2e, 9 June 2011, no. 10-30.310).

The lapse of a summons to pay in the form of a seizure of property

The foreclosure procedure is subject to a number of deadlines. These deadlines are generally under penalty of nullity. Lapse is a sanction that affects the commandment.

The list of deadlines on pain of invalidity of the summons to pay for the seizure of property

 The prescribed deadlines are :

• Notification of the summons to the spouse within 24 hours of service on the debtor. This time limit applies when the property is the family residence.
• Publication of the summons within 2 months of service.
• Service of the summons for the orientation hearing within 2 months of publication of the summons.
• Registered creditors must be summoned within 5 days of the debtor's summons.
• The terms and conditions of sale must be filed with the court clerk's office within 5 working days of notification of the summons to attend the orientation hearing.
• The 3-month time limit within which the orientation hearing must take place. There is no minimum time limit of 1 month, on pain of nullity.
• The forced sale is posted between -2 and -1 month before the auction hearing.
• Failure to requisition the sale on the day of the auction hearing.

The effects of the lapse of a summons to pay in the form of a seizure of property

Lapse retroactively deprives the summons of effect and extinguishes the proceedings (Civ. 2e, 4 September 2014, no. 13-11.887).

In addition, the lapse "reaches all the acts of the seizure procedure". that the summons commits. Consequently, all subsequent procedural acts are annulled (Civ. 2e, 19 February 2015, no. 13.28-445).

Statement of lapse

The judge may declare the contract null and void on legitimate grounds.

The creditor must apply to the court for the order to be lifted. The creditor has fifteen days from the date on which the order lapses.

Frequently asked questions

How do I contest a summons to pay for a property seizure?

The debtor cannot summon the creditor to contest the summons to pay in the form of a seizure. He must wait for the creditor to summon him to appear at the orientation hearing. At this hearing, the debtor can contest the summons only if it is represented by a lawyer.

How can a property be exempt from seizure?

The principal residence of the sole trader is exempt from seizure by operation of law (article L. 526-1 of the French Commercial Code). Other assets may be protected by a notarial declaration. In all other cases, it is impossible to protect your property from seizure.

On the other hand, there are techniques for complicating matters for the creditor. Sometimes to the point of returning the property almost elusive.