Yes, an order to pay is very vicious! Why ? Because it is a request, and therefore, a court decision issued by a judge to your creditor during a hearing to which you will not even be invited.
Without my knowledge ? you will say to me, and the principle of the contradictory? Well legally, the requests are like a horror film, its only interest lies in the effect of surprise, even fear. And technically, the debtor is in a good position to know that he has missed his deadlines. At this stage, you have to act quickly because if the debt gets worse, the debtor will no longer be able to pay anything and very often, the IP is enough to collect the amounts due, therefore… Simplicity, efficiency and speed.
Yes, but what if the claim is contested? This happens much more often than you think: That the loan has been taken out in your name by a third party (often by an ex-spouse), that the debt has already been paid (by the surety), or prescribed… Or, that you simply cannot afford to pay…
In short, how to reverse an order for an injunction for payment which, if not contested, will make the debt definitive?
Well, any debtor will be able to pass from the vicious circle to the virtuous circle, that is to say, by asserting his point of view in adversarial hearing, if he exercises the appropriate legal remedies within the allotted time.
The order for payment procedure
The nature of the receivables
In accordance with the provisions of Article 1405 of the Code of Enforcement Procedures, are concerned debts of a determined amount resulting from:
- a contract (invoices, bank loan or overdraft, consumer credit, rental lease, etc.)
- a statutory obligation (contribution due to a pension fund, etc.)
- Promissory note (art. 1405, 2 ° of the code of civil procedure)
- Acceptance of a debt assignment (art. 313-23 of the Monetary and Financial Code)
- The damages that an accused person has undertaken to pay to the victim within the framework of a penal mediation or a penal composition. Law No. 2004-204 of March 9, 2004 codified in Articles 41-1 and 41-2 of the Code of Criminal Procedure provides that it is sufficient to submit to the magistrate the order validating the measure to be issued. an IP.
To know :
The bill of exchange, although listed in article 1405 of the code of civil procedure, by its nature escapes the jurisdiction of the magistrate. In the case of a commercial act (art. L. 110-1 of the commercial code) only the President of the commercial court will be competent.
Claims not covered by article 1405 of the code of civil procedure cannot be the subject of an order for payment. It's about :
- Alimony claims: In this case there is already a title, it is the judgment fixing the alimony (JAF) that will suffice to execute to recover the amounts due.
- Checks without funds: The specific procedure provided for in Articles L. 131-47 et seq. Of the Monetary and Financial Code must be followed.
The competent judge
Several judges are competent to issue an order for payment, it all depends on the amount and the nature of the debt.
- The magistrate
- For all civil claims, even those over 10 euros! (art. 000 of the code of civil procedure)
- The President of the Commercial Court
For all commercial receivables regardless of the amount (L.110-1 of the Commercial Code)
The territorially competent judge is that of the place where the or one of the debtors being sued resides; these are rules of public order and the judge must automatically disclose his lack of jurisdiction (article 1406 of the Code of Civil Procedure).
The only exception concerns requests made by a syndicate of co-owners against one or more co-owners which must be brought before the jurisdiction of the location of the building.
Since October 1, 2016, the judicial officer should be added to the list.
The new small claims recovery procedure (- 4 euros) put in place to compensate for the abolition of local courts as of January 000, 1 and codified in article L.2017-125 of the code of enforcement procedures , allows the judicial officer to issue an enforceable title. In case of refusal of the amicable procedure by the debtor, the magistrate will issue an Order to Pay to the creditor.
The motion for an order for payment
The request can be lodged by the creditor, the lawyer, the judicial officer or any representative (who must be in possession of a power of attorney) at the registry of the competent court.
It must include the mandatory information provided for in Article 1407 of the Code of Civil Procedure (Decree 29 December 2009), namely all the useful information concerning the applicant (the creditor), the defendant (the debtor) without forgetting to produce to the support of the request all details on the nature and exact amount of the debt (in principal and interest); as well as all the related statements and any supporting documents.
It's a request! So the debtor is not informed of the holding of the hearing.
The request for an order for payment does not suspend the limitation period
The judge can either:
- Reject the request
If he considers the request unfounded (doubt about the claim, prescription, uncertain amount…), the judge can reject the request without having to justify his decision (article 1409 paragraph 2 code of civil procedure). The decision is not subject to appeal. To recover his debt, the creditor will have to bring an action on the merits.
- Partially accept the request
This case, provided for in Article 1409 of the Code of Civil Procedure, specifies that the creditor having seen part of his claims rejected by the judge will have to make a choice:
- Either the decision suits him and he has it served.
- Either it does not suit him and he abstains from it. He will have to initiate proceedings on the merits to hope to succeed on all his claims.
The two options cannot be combined if the creditor has the order for payment served, he will no longer be able to go to court and take action on the merits.
- Grant the request
You should know that even in the absence of the debtor, the judge can verify the amount of the sum, reduce the amount of the penalty clause (art. L.311-30 of the consumer code), as well as interest (art. L.311-33 of the Consumer Code), grant payment periods in favor of the debtor (art. 1422 of the Code of Civil Procedure) and verify the cost of bailiff's acts.
But the order will only be effective if it is duly served on the debtor.
Opposition to the Order for Payment (OIP)
A certified copy of the request and the order must be served on the debtor (and if there are several debtors, on each of them) at the initiative of the creditor. On pain of nullity, it must be accompanied by a summons to pay, contain the mandatory information, indicate the amount fixed in the order and specify the means of appeal.
In the absence of service within 6 months of its issuance, the Payment Order is null and void.
From its service, the means of appeal of an Order for payment is the Opposition.
If the debtor does not object
If the opposition is not made within one month of service, the debtor will no longer have any recourse, the order for payment becomes final.
Once final, the creditor has 1 month to ask the registry by declaration or simple letter, that the OIP be endorsed with the enforceable form. Otherwise, the order would be null and void (1423 of the Code of Civil Procedure).
As soon as the enforceable formula is affixed, the order produces the same effects as a contradictory judgment rendered in the last resort.. What closes the way of the appeal but not that of the court of cassation. However, its control will be very limited because it will only rule on the modalities of affixing the executory formula and not on the substance.
The principle is that once the opposition deadlines have passed, no further recourse is possible to contest the amount or the existence of the debt. The debtor may be sued by his creditor for 10 years, period corresponding to the limitation period for the execution of a court decision (before 2008, it was 30 years!).
At this stage, if the debtor is financially unable to meet his debts, the only solution is to file an over-indebtedness file.
This is why you should never be ostrich when you receive a registered letter. In law, those absent are always wrong! It is worth remembering in this regard thata registered letter that is refused (returned, unsigned, not collected, etc.) is not only deemed to have been notified on the date of the refusal, or of the first presentation, but also to have been read. And this, whether you opened it or not!
To be heard and assert his rights, the debtor who wishes to contest the claim must act very quickly. He has only 1 month to form an opposition.
If the debtor objects
The opposition must be filed within one month of service. In principle the OIP must be served on anyone (given by the bailiff personally to the debtor). If this is not the case, the deadline for filing an opposition is postponed until the first act of seizure.
To know :
As long as the service has not been made to anyone (whether it has been done at the office or at home) the debtor may oppose the OIP in the month following the first act of attachment. (art. 1416 of the code of civil procedure).
Generally, once provided with the OIP, the bailiff will attempt to recover the sums and make a seizure (a seizure and sale most of the time). The procedure begins with an order to pay followed within 15 days of a sale seizure.
As the PV of seizure-sale is equivalent to an act issued to no one, any debtor may oppose the OIP in the month following the seizure. Even if the OIP is 6 months old!
Clearly, if you discover the existence of the Order for an Injunction to Pay issued against you when the bailiff knocks on your door to make a seizure, because let us remember, he is required to tell you on what title. are the basis of the implementing acts. You will then have 1 month to oppose the Payment Order from this first act of seizure.
The opposition does not have to be motivated. The debtor must do so by registered letter and send it to the clerk of the court which rendered the decision (district or commercial court). In principle, nothing prevents it being formed by simple letter but in terms of proof and speed, given the short deadlines, it is preferable to favor sending by registered mail.
Once formed, the opposition renders the order for payment null and void.
It is as if the Order for Payment of Payment no longer exists. All the parties will then be summoned to a new adversarial hearing which will rule on the merits. The decision rendered will be a judgment on the merits which will replace the order.
The hearing on opposition to an order for payment
That's a subtle return to a common law procedure. The parties are summoned by registered letter from the registry.
However, even if it is the debtor, (in the position of defendant in the order for payment proceedings), who seizes the court, he will still be considered as the defendant in this new instance. This has an impact, because the burden of proof will be on the applicant who will remain the creditor.
- If the request is greater than 10 euros, the IT will no longer be competent, only the TGI can rule (attribution competence under common law).
- The bailiff can no longer represent the creditor at the hearing.
- The procedure will remain oral (even before the TGI). No filing will be imposed and the parties can defend themselves.
- If one of the parties appears alone at the hearing, the judgment rendered will be contradictory. If none of the parties appear, the judge will automatically order the termination of the proceedings.
The means of appeal of the judgment rendered on opposition
In accordance with the rules of common law:
- If it is the District Court which statutes (-10 000 euros), the judgment will be rendered as a last resort, so the only possible recourse will be the cassation appeal which will rule only on the application of the rules of law.
- If it is the Tribunal de Grande Instance (+ 10 000 euros) or the Commercial Court which statutes, the judgment will be rendered in first instance with the possibility of appealing the decision.