Introduction

Existence of a claim

Issuance of enforcement order (writs of execution)

Existence of seizable assets or claims

Conditions of enforcement

Judicial authority

Other authorities

Competent authorities and persons

Operations

Difficulties in enforcement

Implementation of compulsory enforcement

General regime of enforcement procedures

Concept of penalty

Scope ratione personae

Material scope

Determination of penalty

Competence of judge

Powers of court

Effects of ruling ordering or rejecting penalty

Pronouncement of penalty

Substantive conditions

Procedural conditions

Role and powers of the judge

Effects of liquidation judgment

Liquidation of the penalty

Penalty

Conditions of implementation

Contesting the measures

Ordinary law on protective measures

Protective seizures

Judicial security interests (sûretés judiciaires)

Specific regimes

Interim protective measures (mesures conservatoires)

Seizure of claims for sums of money

Seizure of tangible movable property

Seizure of intangible rights

Enforcement measures on movable property

Real estate seizures

Evictions

Enforcement measures on real estate

Enforcement measures

5. Civil Enforcement Procedures

The provisional publication of a judicial security begins with the filing or service of one of the instruments referred to in Articles R. 532-1 to R. 532-4 of the Code of Civil Enforcement Procedures, depending on the type of security chosen.

The provisional registration of the judicial protective mortgage is carried out, in accordance with Article R. 532-1, by filing two schedules with the land  …

Formalities

The provisional publication of a judicial security begins with the filing or service of one of the instruments referred to in Articles R. 532-1 to R. 532-4 of the Code of Civil Enforcement Procedures, depending on the type of security chosen.

The provisional registration of the judicial protective mortgage is carried out, in accordance with Article R. 532-1, by filing two schedules with the land registry office under the conditions provided by Article 2423 of the Civil Code, relating to the methods of registering mortgages. The text specifies that the registration includes the indication of the principal amount of the claim and its ancillary items. The schedule must also contain the judge's authorization, the judicial decision, or the title for the judicial mortgage and indicate the identity of the parties and the designation of the properties .

Regarding protective judicial pledges (nantissement judiciaire), if the required information in the document is identical, the methods of transmitting the document vary depending on the type of encumbered asset. Article R. 532-2 of the Code of Civil Enforcement Procedures provides that “the provisional registration of a pledge on a business is carried out by filing two slips on plain paper with the registry of the Commercial Court.” Pursuant to Article R. 532-3, the pledge of shares is effected by serving the issuing company with a document containing various information. When it concerns a registered civil company, the pledge document is published in the Trade and Companies Register . Finally, the pledge of securities is carried out, in accordance with Article R. 532-4, “by serving a declaration to one of the persons mentioned in Articles R. 232-1 to R. 232-4 as the case may be,” namely the issuing company or legal entity, its agent, or the authorized intermediary.

The instruments referred to in Articles R. 532-2 to R. 532-4 of the Code of Civil Enforcement Procedures include the designation of the creditor and the debtor, specifying that in the case of a pledge on a business, the act must also indicate: the election of domicile of the creditor within the jurisdiction of the Commercial Court where the business is located; the authorization or writ under which the registration is requested; and the indication of the principal amount of the claim and its ancillary items. The penalty for an error in the designation of the debtor in the registration of the pledge does not result in its invalidity but only in its unenforceability against third parties . Similarly, errors affecting the designation of the court that issued a writ of execution and the date of service thereof do not undermine the validity of the provisional judicial pledge procedure when the creditor has been effectively put in possession of the title supporting the application .

Under penalty of lapse, no later than eight days after the filing of the registration slips or the service of the pledge, Article R. 532-5 provides that the debtor must be informed by an act of a judicial commissioner. This act must, under penalty of invalidity, contain a copy of the judge's order or the writ under which the security was taken , the specificiation, in very conspicuous characters, that the debtor may request the release of the security, and reproduce Articles R. 511-1 to R. 512-3 and R. 532-6. To these legal mentions, the Court of Cassation adds the obligation for the creditor to inform the debtor of the completion of the registration formalities of the judicial security, to which it applies the same sanction .

Article R. 532-5, 2° specifies that “the debtor may request the release of the security as stated in Article R. 512-1.” This is the case when the conditions of validity , form, and time limit provided for in Articles L. 511-1 and R. 511-1 to R. 511-8 are not met. It follows from the combination of Articles L. 213-6 of the Code of Judicial Organization and Articles L. 111-3 and L. 512-1 of the Code of Civil Enforcement Procedures that the enforcement judge is competent to conduct this assessment . The release of the provisional publication may be requested until the definitive publication, under penalty of inadmissibility . When the creditor already holds an enforceable title, Article R. 532-6 indicates that the definitive publication cannot occur less than one month after the service of the act provided for in Article R. 532-5 . Thus, the debtor always has a minimum period of one month to file their request for release. The release may be ordered due to the lapse of the judicial security, particularly when it has not been executed within three months from the order authorizing it , or in the absence of service of the pledge to the debtor within the eight-day period prescribed in Article R. 532-5 . It is also appropriate to order the release of the provisional judicial mortgage registration on the debtor's real estate when the debtor has income and assets providing certain financial ease and the creditor already benefits from guarantees, eliminating any threat to the recovery of their debt . Conversely, a request for release must be rejected when the conventional guarantees granted by the borrowers on the financed assets are manifestly insufficient to dispel the threats to the recovery of the banker's claim , or when the debtor is aware that the auction sale price of their property is not sufficient to clear their debt and, despite declaring significant income, has not attempted to approach their bank .

CPC exéc., Art. R. 532-3. See CA Saint-Denis de la Réunion, 16 April 2019, LawLex202300008618JBJ, which specifies that the provisions of Article R. 532-3, requiring the publication of the deed in the trade and companies register when the pledge concerns the shares of a registered civil company, have no effect on the validity of the pledge, which takes effect upon service to the company.

CA Paris, 26 January 2023, LawLex202300006546JBJ.

CA Metz, 18 November 2021, LawLex202300006578JBJ.

Cass. 2e civ., 7 June 2012, LawLex202300005205JBJ.

CA Lyon, 24 September 2015, LawLex202300006594JBJ.

CA Bordeaux, 26 June 2014, LawLex202300006593JBJ.

Cass. com., 19 May 1998, LawLex202100002379JBJ.

It is specified, however, that when it concerns a notarial obligation or a claim by the State, local authorities, or their public institutions, only the date, the nature of the title, and the amount of the debt are mentioned.

Cass. 2e civ., 2 February 2012, LawLex202300008578JBJ: in this case, the act had been served on the debtor by the bank, which merely notified him of the order issued by the enforcement judge authorizing it to take a provisional mortgage registration on his real estate, by providing him with a copy of this decision and the application and by recalling the legal procedures for the release of the registration, but without mentioning that it had already proceeded with this registration.

Cass. 2e civ., 24 September 2015, LawLex202300007329JBJ, regarding the requirement of a claim apparently well-founded in principle on the day the court rules. See also Cass. 2e civ., 7 June 2012, LawLex202300005205JBJ, concerning the existence of potential threats to the recovery of the debt.

Cass. 2e civ., 25 June 2015, LawLex202300008552JBJ, which approves the courts of second instance who, after noting that the debtors had only initiated their action seeking the release of the provisional mortgage registration after the transformation of the provisional registration into a definitive registration, which could only occur in the absence of a previously filed request for the release of the provisional publication, decided that a bar to proceedings could be enforced in any event and that, consequently, the definitive registration rendered inadmissible the application for the release and cancellation of the provisional mortgage filed by the debtors.

For an application, See Cass. 2e civ., 25 June 2015, LawLex202300008552JBJ.

5. Civil Enforcement Procedures

119. Formalities

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

119. Formalities

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise