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 distribution of the proceeds from the sale of real estate is the ultimate goal of the real estate seizure procedure, as highlighted by Article L. 311-1 of the Code of Civil Enforcement Procedures  and the Court of Cassation when it states that real estate seizure and distribution of proceeds constitute the two phases of a single procedure . This second phase is pursued at the initiative of the …

Final phase of real estate seizure proceedings

The distribution of the proceeds from the sale of real estate is the ultimate goal of the real estate seizure procedure, as highlighted by Article L. 311-1 of the Code of Civil Enforcement Procedures  and the Court of Cassation when it states that real estate seizure and distribution of proceeds constitute the two phases of a single procedure . This second phase is pursued at the initiative of the seizing creditor or, failing that, the most diligent creditor or the debtor . The costs of the procedure, advanced by the latter, will be deducted with priority over all others . The Code of Civil Enforcement Procedures organizes an amicable distribution procedure, which only takes a judicial turn in the absence of an agreement among the participating creditors.

Pursuant to Article L. 331-1, only the pursuing creditor, creditors registered on the seized property at the date of publication of the payment order constituting seizure, creditors registered on the property before the publication of the title of sale who have intervened in the proceedings, creditors benefiting from a general privilege on the properties listed in Article 2377 of the Civil Code  and the condominium association for claims related to the current year as well as the four previous years owed by the debtor co-owner , and creditors holding a security published on the properties by destination seized before the publication of the title of sale are admitted to assert their rights on the sale price. Creditors not mentioned in this list, such as unsecured creditors, do not have standing to contest the distribution plan . Article L. 331-2 also specifies that creditors who have failed to declare their claim despite the summons served to them are no longer admitted to participate in the distributions.

The distribution procedure begins with a formal notice, initiated by the pursuing creditor, to the creditors mentioned in Article L. 331-1 to declare their claim . This notice must, on pain of invalidity, contain a copy of the order to pay deemed as a seizure of real estate, a formal notice to declare the claims registered on the seized property, in principal, costs, and accrued interest, with the indication of the rate of default interest, by an attorney's act filed with the registry of the enforcement judge and accompanied by a copy of the registration slip or any element justifying a registration in the register mentioned in Article R. 521-1 of the Commercial Code and to notify the same day or the first working day following this declaration to the pursuing creditor and the debtor, in the same forms or by service, as well as the reproduction, in very conspicuous characters, of Articles L. 331-2 and R. 331-5. Creditors have a period of two months to declare their claim .

Subsequently, in the relatively rare scenario in practice where there is only one creditor, Article R. 332-1 provides that the creditor must send, within two months following the publication of the sale title, a payment request for their claim to the escrow agent or the Caisse des dépôts et consignations by registered letter with acknowledgment of receipt, accompanied by documents justifying the request. When the distribution follows a real estate seizure, the creditor must provide a certified mortgage statement as of the date of the publication of the payment order constituting seizure, a copy bearing the enforceable formula of the orientation judgment and the judgment noting the end of the proceedings, to which is annexed a copy of the amicable sale contract and a certificate from the registry of the enforcement judge certifying that no creditor registered after the date of the publication of the order has intervened in the proceedings. The escrow agent or the Caisse des dépôts et consignations then proceeds with the payment within one month of the request and, within the same period, informs the debtor of the amount paid to the creditor and, if applicable, provides them with the balance. The escrow agent or the Caisse des dépôts et consignations can only refuse payment if the documents produced demonstrate the existence of another creditor meeting the conditions of Article L. 331-1. In case of dispute, the enforcement judge is seized by the pursuing creditor or the debtor .

When there are multiple creditors meeting the conditions of Article L. 331-1, the pursuing party must notify them, within two months  following the publication of the sale title, of a request for an updated declaration of claims. These creditors must submit their updated statement through attorney submissions within fifteen days following the request, under penalty of forfeiture of interest subsequent to the declaration provided for in Article R. 322-7(4) or Article R. 322-13. Notwithstanding the forfeiture they incur in the distribution procedure, creditors summoned to declare their claim and who have failed to do so may proceed by attorney submissions to be allocated any remaining balance . Based on these declarations, the pursuing party prepares a distribution plan, which must take into account the order of privileges held by the creditors. For this purpose, they may summon the creditors . They then notify their plan to the concerned creditors and the debtor within one month following the expiration of the deadline given to creditors to update their claim . Under penalty of nullity, this notification must state that a reasoned objection may be filed by attorney-to-attorney act with the pursuing party, accompanied by the necessary supporting documents, and that in the absence of an objection within fifteen days following receipt of the notification, the plan is deemed accepted and will be submitted to the enforcement judge for approval .

In the absence of a challenge within fifteen days, the pursuing party must seek its approval by the judge, by way of an application filed within a one-month period . The enforcement judge grants enforceability to the distribution plan after verifying that all creditors involved in the procedure and the debtor have been able to present their challenges or claims . As emphasized by the Court of Cassation, when faced with a request for approval of an amicable distribution plan seeking to grant it enforceability, the enforcement judge does not have the authority to assess the merits of the distribution plan, except to verify its compliance with public policy . Issued as a final decision, the order by which the enforcement judge grants enforceability to the distribution plan is subject to appeal before the Court of Cassation . However, the seized debtors who did not challenge the distribution plan within the fifteen-day period from the receipt of its notification are deemed to have accepted it, so they cannot invoke before the Court of Cassation any argument contrary to the agreement they have given . Conversely, as a non-adversarial decision rendered at the request of one party, at the end of a procedure not requiring appearance, the order approving the distribution plan is not subject to opposition .

On the other hand, when the distribution plan is contested, the applicant must summon the creditors involved in the proceedings and the debtor, within a period of fifteen days to one month . If the creditors and the debtor reach an agreement on the distribution of the proceeds, a report is drawn up, signed by the creditors and the debtor, and a copy is given or sent to them. At the request of the most diligent party, the enforcement judge grants enforceability to the agreement report upon its production, after verifying its regularity .

In the absence of an agreement, the procedure enters its judicial phase. Pursuant to Article R. 333-1, the pursuing party must refer the matter to the enforcement judge by submitting the distribution plan, a report outlining the difficulties encountered, as well as all relevant documents. When it is necessary to allocate the price of several properties sold collectively or to determine the portion of the sale price corresponding to the value of a property by destination, the judge, at the request of the parties or ex officio, may appoint an expert by order . The judge then establishes the distribution statement, rules on the distribution costs, and may order the removal of the securities registered on the property in the debtor's name. Any appeal against the judgment establishing the distribution statement has a suspensive effect .

Finally, the escrow agent or the Caisse des dépôts et consignations proceeds with the payment to the creditors and, if applicable, the debtor, within one month of the notification made to them, as the case may be, of the approved distribution plan or the agreement report bearing the enforceable formula or a copy bearing the enforceable formula of the decision establishing the distribution state . However, it should be kept in mind that from the publication of the title of sale and based on a mortgage statement, the first-ranking creditor may, without any contrary clause being able to prevent it, request, by application to the enforcement judge, to be paid provisionally for the principal of their claim by the escrow agent or the Caisse des dépôts et consignations. If this request is granted, the decision of the enforcement judge must be notified to the debtor and the registered creditors, who have a period of fifteen days to enforce this decision. The interest, costs, and ancillary charges of this claim will be paid once the distribution plan becomes final .

According to the provision, “[t]he seizure of real estate aims at the compulsory sale of the debtor's property or, where applicable, that of the third-party acquirer for the purpose of distributing its price.”

Cass. civ., 16 May 2008, LawLex202300010386JBJ; Cass. 2e civ., 5 May 2011, LawLex202300007693JBJ.

Cass. 2e civ., 21 March 2013, LawLex202300010381JBJ, considering that exceeding the time limit following the publication of the title of sale does not engage the liability of the pursuing creditor.

CPC exéc., Art. R. 332-4, according to which the draft is also served, if applicable, to the trustee who would have enforced the opposition provided for by Article 20 of Law No 65-557 of 10 July 1965 establishing the status of co-ownership of built buildings.

See, on the obligation of the court to verify that the application was indeed submitted within the one-month period, Cass. 2e civ., 13 October 2016, LawLex202300010953JBJ.

CPC exec., Art. R. 332-6. - For an illustration, See Cass. 2e civ., 21 February 2013, LawLex202300010954JBJ.

Cass. 2e civ., 17 September 2020, LawLex202300004472JBJ.

Cass. 2e civ., 18 October 2012, LawLex202400003771JBJ.

Cass. 2e civ., 5 January 2017, LawLex202300010380JBJ.

This provision concerns legal costs, provided they have benefited the creditor against whom the privilege is enforced, and the wages and indemnities owed to employees and apprentices. - On the concept of legal costs, See Cass. civ., 18 October 2010, LawLex202300010971JBJ; Cass. 2e civ., 25 September 2014, LawLex202200009297JBJ, highlighting that the fees of the pursuing creditor's lawyer who drafted the distribution plan do not constitute legal costs.

Cass. 2e civ., 26 November 1998, LawLex202400003769JBJ; Cass. 2e civ., 12 April 2018, LawLex202300010950JBJ.

5. Civil Enforcement Procedures

156. Final phase of real estate seizure proceedings

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156. Final phase of real estate seizure proceedings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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