In the field of debt collection, procedural rigor is an essential safeguard for the protection of our clients’ interests. When a debt linked, for example, to a mortgage loan becomes due, banks often initiate swift legal proceedings. However, even when the substance of the debt is not disputable, the form of the procedure remains our best line of defense.
The Importance of Verifying a Bailiff’s Due Diligence in Debt Collection Proceedings
This case perfectly illustrates how a rigorous procedural analysis made it possible to obtain the annulment of the judgment against our client.
The dispute opposed our client to S.A. Caisse d’Épargne de Bourgogne Franche-Comté.
The matter concerned an SCI (real estate holding company) which, in order to finance the purchase of a property, had taken out two bank loans. Following the judicial liquidation of that SCI, the Bank decided to pursue the individual partners in order to recover the outstanding unpaid balance of the debt.
While many debates concerned the substance of the debt, our strategy was to challenge the very validity of the referral to the Court, thereby ensuring the protection of the defence rights.
We raised a plea of nullity regarding the originating summons (the act initiating the court proceedings) served on our client. Under French law, a bailiff must carry out sufficient steps to ensure that the recipient is informed of the proceedings. Only when such enquiries prove unsuccessful may a report of searches (P.V. de recherches) be drawn up.
Le Bot law firm demonstrated that, in our client’s case, the bailiff’s steps were insufficient. It was established in particular that the tax authorities held the exact address of our client. Yet the bailiff had not justified having carried out this simple and essential verification.
This lack of rigour in performing the required due diligence constitutes a breach of procedural efficacy and calls into question the validity of the act.
Annulment of a Judgment and Cancellation of a Debt Exceeding 10,000 Euros
The Court accordingly declared null and void the originating summons served on our client. This procedural nullity resulted in the annulment pure and simple of the judgment of the Court in those provisions ordering our client to pay the debt.
This judicial victory ensures full protection of our client’s interests, as the Bank can no longer rely on that decision to demand collection of the amount initially owed by him. The tangible outcome is the cancellation of a judgment exceeding 10,000 euros.
Cour d’appel de Bourges, 1re chambre, 18 août 2022, n° 21/00464
