In over-indebtedness proceedings, the first step is the examination of the admissibility of the over-indebtedness application by the commission.
Pursuant to Article L711-1 of the French Consumer Code, the admissibility of an over-indebtedness application is subject to the following conditions:
- the debtor must be a natural person acting in good faith;
- the debtor must find themselves in a manifest inability to meet all of their debts, of any nature (whether non-professional or professional).
If the Commission declares the application admissible, its decision may be challenged by creditors before the Consumer Protection Judge (Juge des Contentieux de la Protection).
It was at this stage of the proceedings that Le Bot Avocat intervened to defend the interests of a debtor before the Consumer Protection Judge of Bobigny.
The bank had challenged the commission’s admissibility decision by invoking the debtor’s lack of good faith. The challenge was formalized by a letter signed by an employee of the bank’s legal department.
For the debtor, the stakes were high: had the Consumer Protection Judge followed the bank’s arguments, the individual would not have been able to benefit from the protection of the over-indebtedness procedure. This would have allowed creditors to resume their enforcement actions and pursue seizures against the debtor’s assets.
However, from a procedural standpoint, when a company brings legal proceedings without being represented by a lawyer, strict formalities are required. This is particularly the case when a commercial company (the bank) is represented by one of its employees:
- Article 416 of the French Code of Civil Procedure provides that “anyone intending to represent or assist a party must demonstrate that they have received a mandate or mission to do so“;
- Article L.227-6 of the French Commercial Code provides that a simplified joint-stock company (SAS) is represented vis-a-vis third parties solely by its president (Cass. com., 25 May 2022, No. 20-21.460), and, in case of delegation, the representative must hold a special power of attorney (Cass. 1st Civ., 23 November 2000, No. 99-04.183).
In this case, the bank’s letter of challenge, drafted and signed by one of its employees, did not contain any authorization to act in court.
The sanction for lack of authority is the nullity of the procedural act (Article 117 of the French Code of Civil Procedure).
It was on this basis that Le Bot Avocat argued for the nullity of the act challenging the commission’s decision. This argument was accepted by the Consumer Protection Judge, who annulled the challenge.
The over-indebtedness proceedings were thus able to continue, without the debtor being threatened by seizures on their assets.
Consumer Protection Judge, Bobigny, 7 April 2025, Case No. 24/00383
