Presentation: When you are indebted to someone, it is possible that the creditor compel you to honor your commitments through a procedure called "order for payment". An order for payment order is then served on you. But in this case, your rights and obligations? How to challenge the injunction to pay?
When you are indebted to someone, it is possible that the creditor compel you to honor your commitments through a procedure called "order for payment".
An order for payment order is then served on you.
But in this case, your rights and obligations? How to challenge the injunction to pay?
The terms of the opposition to the injunction to pay
First, be aware that the opposition period is required by law.
Indeed, under Article 1416 of the New Code of Civil Procedure, the debtor has one month from its information by the creditor is to say, after being served with the order for payment order to challenge the injunction by way of opposition.
However, be aware that if the meaning was not made to the person of the debtor, but at his home in the study of the bailiff or the last known address, the opposition is still admissible the month following the first bailiff served personally.
The opposition is also admissible in the following month when the first enforcement action having the effect of making unavailable or all of the debtor's property has been brought to the attention of the debtor.
Formal rules are also to be observed.
Indeed, the opposition shall be filed at the Registry or by declaration against receipt or by letter.
If the opposition is filed by registered mail, the date of the opposition, that of sending the letter rather than the receipt by the Registry (Article 669 of the Code of Civil Procedure; Cass. 2nd civ., 27 April 1988: Jurisdata No. 1988-000803; Bull. civ. 1988, II, No. 99).
The debtor opposed to forming an injunction to pay is not required to justify his act (Cass. civ second., 14 Jan 1987: Jurisdata No. 1987-000010).
On the place of the opposition, Article 1415 al 1 of the Code of Civil Procedure provides that the opposition shall be filed with the court that the president made the order of payment order.
The opposition brought before a court other than under section 1415 of the Code of Civil Procedure is deemed not to have been formed and is therefore void.
The judges of the Supreme Court considered in a decision dated May 17, 1977 that "a letter addressed to the debtor by the bailiff can not argue continuing opposition within the meaning of section 1415 of the Code of Civil Procedure ( Cass. 2nd civ., May 17, 1977: JCP G 1977, IV, p. 177; Bull. civ. 1977, II, 134).
If the opposition is by declaration at the Registry, the date of the opposition is evidenced by the receipt must be immediately returned to the opponent (V. CPC, art. 1415, para. 2);
If the opposition is filed by registered mail, the date of the opposition is the date of dispatch of this letter, the postmark as proof, and not the date of receipt of the letter by the Registry.
If opposition to order for payment before the Commercial Court, the opposition is received free of charge by the clerk.
Concerning the recording of costs of opposition from the Registry, the Registrar shall invite the creditor to record the facts of the opposition within two weeks. If this deadline is not met, the demand for order for payment to lapse.
In this case there is default of payment and the creditor recovers its freedom to act.
It is the debtor himself who must file an opposition (Cass. civ second., March 4, 2004: Jurisdata No. 2004-022592; Bull. Civ. 2004, II, No. 90, JCP G 2004, IV, 1858) but sometimes there are several debtors. In this case, the law provides that opposition by one of the debtors also produces effect in respect of other debtors.
The debtor may make an adjustment if the opponent did not have the ability to form this remedy. The adjustment must be made within one month of service of the order, that is to say, the opposition period.
If an objection against the order of payment order covered with the enforcement order, seizure-allocation performed on its basis can not be released.
Note that when the service of the order is irregular, the opposition period does not run.
Once you have an objection, you will be invited by the Tribunal which will consider the reasons for your dispute.
Care must be taken because no abuse can be described as dilatory and lead the opposition to ask a fine.
I remain at your disposal for any information and litigation.