Unfair Acceleration Clause: Attachment of Earnings Rejected (CA Aix-en-Provence, 11 June 2026, No. 25/11854)

Aix-en-Provence Court of Appeal, Chamber 1-9, 11 June 2026, RG No. 25/11854

What happened in this attachment of earnings case?

The story begins with a classic mortgage. On 19 June 2015, a borrower took out a loan from the Caisse de Crédit Mutuel with an initial amount of €156,232, recorded in a notarial deed. A few months later, from September-October 2016, difficulties set in and instalments went unpaid.

The bank reacted. By registered letter, it gave the borrower formal notice to pay the overdue monthly instalments and warned her that, failing payment before a deadline, it would declare acceleration. Then, by a second registered letter of 10 May 2017, it announced that the file was being passed to its litigation department and demanded full repayment of the sums remaining due, a total exceeding €163,000 (outstanding capital, overdue instalments, interest, insurance and a lump-sum indemnity of 7%).

The financed property was then sold at auction in the context of a mortgage enforcement (saisie immobilière). The bank received the price: €107,153.85. But it considered that its claim was not entirely extinguished. On 23 February 2023, it filed an application for an attachment of the borrower’s earnings (saisie des rémunérations), to recover a sum of €75,848.70, relying on the notarial deed as an enforceable instrument.

That is where everything changed. At the conciliation hearing, the borrower disputed the claim. The enforcement judge then raised of his own motion a decisive question: was the acceleration clause in the 2015 contract not unfair? By a judgment of 7 October 2025, the Marseille enforcement judge dismissed the bank’s application for attachment and ordered it to pay costs. The bank appealed. On 11 June 2026, the Aix-en-Provence Court of Appeal upheld the judgment in full and further ordered the bank to pay the borrower €3,000.

What is an acceleration clause and why can it be unfair?

To understand what is at stake, we must start from the contractual mechanism itself. A loan is a contract performed in instalments: the borrower benefits from a term (terme), that is, a period in which to repay, month after month. Acceleration (déchéance du terme) is the abrupt end of that period.

This power is almost always provided for by a clause in the loan contract. In the case decided at Aix-en-Provence, the clause was headed “Immediate Repayment” and stipulated that “the sums due shall be immediately due by operation of law” in particular “if the borrower is more than 30 days late in paying an instalment”. To rely on it, the lender simply had to “warn the borrower in writing”.

The problem? This clause is drafted and implemented in the bank’s exclusive interest. This is where consumer law and the notion of an unfair term come in.

Why does the absence of reasonable notice make the clause unfair?

European and French case law has identified a precise criterion. A clause providing for termination of the loan by operation of law after a formal notice to pay overdue instalments, without notice of a reasonable length, creates a significant imbalance to the consumer’s detriment. Why? Because the borrower is exposed to a “sudden worsening of the conditions of repayment”: he or she moves, without any real safety net, from a few hundred euros of arrears to tens of thousands of euros immediately due.

The Court of Appeal identifies two cumulative defects in the disputed clause. First, the contract provided for no prior formal notice with a reasonable notice period allowing the borrower to regularise her debt and avoid termination by operation of law. Second, the procedure for implementing the clause and declaring early repayment was left to the bank’s sole discretion. In other words, it is the lender that decides, alone, when and how the axe falls.

The court expressly relies on the case law of the Court of Justice of the European Union (CJEU, 26 January 2017, Banco Primus, Case C-421/14, paragraphs 73 to 75) and that of the French Supreme Court (Cour de cassation) to confirm that the clause is liable to create a significant imbalance to the consumer’s detriment, that it must be declared unfair and, as a consequence, deemed unwritten.

Does res judicata prevent challenging the clause at the attachment stage?

This was the bank’s central argument, and it deserved to be taken seriously. Several years earlier, in 2018, an order on the conduct of the sale (jugement d’orientation) made in the mortgage enforcement had found that the bank showed, by virtue of the notarial deed, a claim of a determined amount. For the bank, that judgment was final: it had res judicata effect. Consequently, any challenge to the regularity of the acceleration had, in its view, to be declared inadmissible.

The Court of Appeal rejects the argument, and this is one of the major contributions of the judgment. According to the case law of the CJEU (again the Banco Primus judgment), res judicata does not, in itself, prevent the national court from examining the unfair nature of a term, whether at the request of the parties or of its own motion, even at the stage of a measure of enforcement. Consumer protection, which forms part of a European economic public policy, prevails over procedural rigour.

Can the judge raise the unfair nature of his own motion?

Yes, and that is precisely what happened here. The borrower had not, initially, put forward a technical argument based on the unfair nature of the clause: it was the enforcement judge who, by an interlocutory judgment (jugement avant dire droit), raised the question himself.

The court recalls the formula of the French Supreme Court: the enforcement judge, at the request of a party or of his own motion, “is required to assess, including for the first time, the possible unfair nature of the contractual terms that serve as the basis for the proceedings” (Cass. com., 8 February 2023, No. 21-17.763). The first judge was therefore “rightly” entitled to examine the clause of his own motion. The protection does not depend on the borrower’s vigilance or legal skills: it is carried by the judge himself.

Can the bank fall back on ordinary law once the clause is eliminated?

Faced with the elimination of its clause, the bank attempted a fallback manoeuvre. Since the contractual early repayment clause fell, it invoked ordinary law: Articles 1221 et seq. of the Civil Code (code civil) (on specific performance of obligations) and Article L. 312-39 of the Consumer Code (code de la consommation). The idea: to have it held that termination of the contract had in any event been validly declared and that the sums were due on this substitute basis.

The court closes this door sharply, relying on the limits of the enforcement judge’s powers. An enforcement judge who deems an unfair term unwritten can neither annul nor modify the enforceable instrument. Nor can he rule on a claim for payment, outside the cases provided for by law. His role is circumscribed: he verifies the existence of a liquid and due claim in order to authorise, or not, the enforcement measure.

How does the judge recalculate the debt?

This is the most instructive reasoning in the judgment. Once the acceleration clause is deemed unwritten, the mechanism that made everything due at once no longer exists. Legally, it is as if the bank had never validly declared early repayment. The enforceable instrument (the notarial deed) is therefore “deprived of effect” on this point, and the enforcement judge must recalculate the debt according to the rules specific to enforcement measures.

Without an acceleration clause, the loan contract is deemed to have continued normally, instalment after instalment. The judge then finds that between the first unpaid instalment (October 2016) and the hearing (June 2025), 105 instalments of €700.74 each had not been paid, representing a debt of approximately €73,577.70. But, and this is decisive, the financed property had been sold at auction, and the bank had received €107,153.85 from it.

The lesson is powerful: by removing the effect of the unfair term and reasoning instalment by instalment, one finds that the proceeds of the sale of the property largely covered the sums actually due. The bank, which was still claiming more than €75,000 by way of attachment of salary, in reality showed no enforceable debt. Its application had to be dismissed.

Why was the “narrowing down” of the clause refused?

The bank had one last, more subtle argument. It asked the court to “narrow down” (cantonner) the effects of the clause being deemed unwritten: declaring unfair only the part of the clause relating to early repayment on account of missed payments, while retaining the other cases of early repayment provided for, in particular the one linked to mortgage enforcement and the sale of the property.

The court rejects this request for two solid reasons. First, the defect does not lie in an isolated case of early repayment that could simply be struck out: it is the very conditions for implementing acceleration, in the event of non-payment, that are left to the bank’s discretion, without prior formal notice accompanied by a reasonable notice period. The problem is structural, not incidental.

Second, the stipulation providing for early repayment “in the event of mortgage enforcement” could not save the bank either: the bank, which had initiated the measure, had never intended to rely on this case of early repayment when terminating the contract, and had not warned the borrower of it in writing, whereas the clause required this. One cannot, after the event, invoke a contractual basis that one did not use at the time. The judgment is therefore upheld on this point as well.

What should you take away if you face an acceleration or an attachment?

This judgment is not a technical curiosity: it outlines a genuine defence strategy for borrowers and debtors subject to enforcement. Several concrete levers emerge.

1. Acceleration can be challenged, even late. Whether you are at the stage of mortgage enforcement, attachment of earnings or another enforcement route, you can raise the unfair nature of the acceleration clause. The res judicata effect of an earlier judgment does not automatically close the door on you.

2. The decisive criterion is notice. Reread your loan offer. If the clause allows the bank to make everything due “by operation of law” after mere missed payments, without giving you a reasonable and clearly defined period to put things right, you have a serious unfair term argument.

3. The bank does not save itself by invoking ordinary law. Once the clause is eliminated, the enforcement judge cannot retry the case on the merits or rule on a claim for payment: he recalculates the debt instalment by instalment, taking into account everything the bank has already received (in particular the sale price of the property). This recalculation can shrink, or even wipe out, the supposedly due debt.

4. The judge’s role is an ally. The judge is required to examine the unfair nature of terms of his own motion. Before the enforcement judge, it is therefore useful to put the complete loan offer and the bank’s statement of account before the court: these are the elements that will enable the judge to exercise his protective role.

Beyond the acceleration clause, other clauses in credit contracts and guarantee deeds may conceal a significant imbalance (interest clauses, lump-sum indemnities, penalty clauses, information requirements). A review of the contract by a banking law attorney makes it possible to identify these levers before an enforcement measure proceeds to your detriment.

Conclusion: A Protection That Does Not Depend on Your Vigilance

The Aix-en-Provence Court of Appeal’s judgment of 11 June 2026 is an excellent illustration of the strength of consumer law applied to mortgages. It confirms three ideas that borrowers would do well to know: the unfair nature of an acceleration clause lacking reasonable notice, the inability of res judicata to neutralise the review of unfair terms, and the formidably concrete effect of this review when it leads to recalculating the debt and finding that it has already been satisfied by the sale of the property.

For the bank, the sanction is twofold: not only is the attachment of earnings dismissed, but it is ordered to compensate the borrower for her procedural costs. For the borrower, the message is clear: a brutal acceleration, followed by an attachment, is not irresistible. If you are facing an attachment of your salary, your accounts or your assets, or an acceleration that you consider unfair, have your contract reviewed: the clause serving as the basis for the proceedings may be deemed unwritten.

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