Court of Cassation Ruling on Curatorship and Service of Process

Extract

[...] Court of Cassation, Civil Chamber June no. 15-19.715 - Must an order for payment by injunction rendered by the court of first instance be served on the curator of a protected adult placed under simple curatorship? - Case summary The facts : Madame placed under curatorship, had contracted loans that she could no longer assume repayment of. The procedure : The FRANFINANCE company, on request, filed a writ of summons with the court of first instance. The court issued on 10 April 2009 four writs of summons containing judicial mortgage inscriptions on a building belonging to Madame X. [...]

[...] As it is a cassation ruling, it is not reproduced. Grounds of the Court of Appeal: The Court of Appeal considers that service on the curator is not necessary for acts of administration that the person under curatorship can perform without the assistance of their curator. According to the Court of Appeal, forming an appeal against an order for payment, an opposition, being an administrative act, Mrs. X could do it alone and it was therefore not necessary to serve these acts on her curator. [...]

[...] The orders for payment injunction and their appeals constitute legal actions; therefore, the curator should have assisted the person under curatorship in the procedure related to the order for payment injunction. Thus, the procedure related to a payment injunction order cannot be subject to special treatment since it was part of a legal action and involved service. Scope of the decision: This decision is part of a constant jurisprudence. In fact, for the Court of Cassation, any service made to the adult under curatorship must also be made to the curator, otherwise it is null. [...]

[...] Thus, it is not strictly speaking an advancement in the protection of adults. The rules applicable to protected adults are not modified. Nevertheless, the Court of Cassation, failing to increase the protection of adults by sanctioning the Court of Appeal, comes to prevent this protection from receding. Indeed, the distinction made by the Court of Appeal, which aimed to exclude the requirement of notification for acts not requiring the assistance of the curator, could have the consequence of weakening the protection of adults, which the Court of Cassation refuses. [...]

[...] The Court of Appeal's decision is overturned and we have to wait for a new decision from the Court of Appeal of referral. It is likely that the Court of Appeal of referral will follow the Court of Cassation and pronounce the dismissal requested by Madame X. The issue was to know if the action aimed at contesting the payment order was prescribed because it was out of time. Considering that the procedure related to the payment order was null due to lack of notification to the curator, the Court of Cassation's decision obliges the financial company to redo a procedure. [...]