Expiry of the summons to pay in the event of seizure

The concept of proceedings is not an obvious one in civil enforcement proceedings. This is undoubtedly why the legislature sought to limit the effects of a summons to pay in the form of a seizure over time by means of rules that are independent of the concept of the expiry of proceedings as understood in traditional civil procedure.

The time limit for expiry of the summons to pay in the event of seizure

Article R. 321-20 of the Code of Civil Enforcement Procedures :

"A summons to pay in the form of a seizure ceases to have effect by operation of law if, within five years of its publication, no mention has been made in the margin of this publication of a judgement recording the sale of the seized property.

In the event of refusal to lodge the order or rejection of the publication formality, the five-year period does not begin to run until the application is regularised or the decision mentioned in article 26 of decree no. 55-22 of 4 January 1955 reforming land registration is taken.

The summons is therefore time-barred if, within 5 years of its publication in the real estate register, there has been no mention in the margin of this publication of a judgement recording the sale of the seized property.

Publication is recorded on the day the deed is filed with the land registry.

When the publication has been rejected, it is registered from the date on which the rejection is rectified (article 34 of the decree of 4 January 1955).

Where publication has been refused or rejected and the refusal or rejection decision has been challenged before the administrative court, the date of publication of the order is that of the decision ordering publication (article 26 of the decree of 4 January 1955).

The expiry period, which used to be 2 years, was increased to 5 years by article 2 of decree no. 2020-1452 of 27 November 2020. The second paragraph of article 12 of the same decree states that "The other articles come into force on 1 January 2021. They apply to proceedings in progress on that date, with the exception of 19° and 25° of Article 1 and Article 10, which apply to proceedings commenced on or after 1 January 2021.

Thus, the amendment to the limitation period applies to current proceedings, it being specified that if the limitation period has already been extended and the judgment ordering this extension specified that it was valid for a new period of 2 years, then the res judicata effect of this decision will prevent the application of the provisions of the aforementioned article 12.

Extension of the time limit for expiry of the summons to pay in the event of seizure

Article R. 321-22 of the Code of Civil Enforcement Procedures :

"This period is suspended or extended, as appropriate, by a note in the margin of the copy of the published summons of a court decision ordering the suspension of enforcement proceedings, the postponement of the sale, the extension of the effects of the summons or the decision ordering the reopening of the auction.

The time limit is extended by a note in the margin of a decision ordering the suspension of enforcement proceedings, the postponement of the sale, the extension of the effects of the summons or the reopening of the auction.

The extension of the effects of the summons runs from the moment when the decision to suspend or extend is published in the property register, and not from the moment when the decision is made.

The request for an extension of the effects of the summons is filed by way of submissions with the auction registry, which will summon the parties by recorded delivery letter.

It must therefore be submitted within a timeframe that allows the court clerk to summon the parties, the judge to deliberate and the lawyer to proceed with the publication formality.

The request for an extension of the effects of the summons is an incidental request that may be submitted after the orientation hearing (Civ. 2^e9 June 2011, no. 10-30.310).

It should be noted that not all enforcement judges operate in the same way and that the proposed solution, consisting of filing pleadings, is the most common. We have already heard, during training sessions, that some enforcement judges ask the creditor to serve a writ of summons, while others would agree to extend the effects of the summons by means of an ordonnance sur requête. These differences in practice are the result of the vagueness of the text: it simply states that the extension results from the publication of an "court decision.

The procedure for declaring the expiry date

Article R. 321-21 of the Code of Civil Enforcement Procedures :

"On expiry of the period provided for in article R. 321-20 and until publication of the title deed, any interested party may ask the enforcement judge to declare that the summons has lapsed and to order that this be noted in the margin of the copy of the summons published in the property register.

Where proceedings are pending before the enforcement judge, the application for a declaration that the summons has lapsed shall be submitted to the judge by way of pleadings.

The case law holds that the judge may raise the issue of lapse of time of his own motion (Civ. 2^e21 March 2019, no. 17-31.170) and that it may be established by the judge on the application presented by the debtors for the first time before the court of appeal, even though it was acquired before the orientation hearing (Civ. 2^e18 October 2018, no. 17-21.293).

By virtue of the rule that a summons to pay in the event of seizure cannot be published in the property register if another summons to pay in the event of seizure has previously been published and not cancelled, a third party to the proceedings may have an interest in requesting that the summons to pay be cancelled.

In practice, this request for cancellation is made by means of a summons, in the form of a summons to appear before the enforcement judge, with the obligation to constitute a lawyer.