Real estate seizure, paid order, mediation clause, creditor, debtor, CPCE, CPC, JEX, Credit West Bank, loan contract, procedural irregularity
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Abstract
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Abstract
A case study on real estate seizure and the importance of mentioning the amount claimed in a paid order.
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[...] To do this, the creditor seizes the immovable property by an act served on the debtor (Article L321-1 of the CPCE), that is to say by the service of a paid order (Article R321-1 of the CPCE), which must contain information on pain of nullity, including the breakdown of the sums claimed as principal, as well as the interest and costs due and an indication of the rate of default interest (Article R321-3 3° of the CPCE). In this case, the paid order did not mention the sums claimed, thus preventing the JEX from identifying the exact amount of the claim. The paid order not containing a detailed breakdown of the sums claimed is affected by a procedural irregularity (Cass. civ. 2e April 2009, n°08-12.105). Thus, the order to pay worth seizure is null for defect of form due to the absence of mention of the amounts claimed. [...]
[...] mixte February 2003, n°00-19.423). In this case, although mediation took place, since the mediator had not yet rendered his report, it is not completed. Therefore, it is impossible to consider the obligatory amiable preliminary as accomplished, and thus constitutes a ground for non-receivability. Thus, the referral to the mediator makes the summons to the orientation hearing before the enforcement judge (JEX) irreceivable, in that the mediation not being completed, a ground for non-receivability is constituted. II/ On the seizure of immovable property The spouses having not repaid the loan granted by the bank, the latter had a payment order served, amounting to a seizure of immovable property. [...]
[...] Due to non-payment, it initiated a real estate seizure procedure. The loan contract included a mediation clause, which was implemented. However, the bank sued the couple without waiting for the mediator's report. The question is whether the referral to the mediator makes the summons to the orientation hearing before the execution judge irreceivable. Conventional mediation is a structured process, by which parties attempt to reach an agreement, outside of any judicial procedure, in order to resolve their dispute amicably, with the help of a third party (Article 1530 of the CPC). [...]
