The right to sue is a right which expires with the passage of time, that is to say, by the passing of a legal period leading then to prescription or foreclosure.
In common law, foreclosure is the civil sanction that extinguishes a person’s action due to the expiry of the time limit which was legally allotted to him to assert his rights in court. This sanction is expressed through an end of inadmissibility.
WHAT IS THE DIFFERENCE BETWEEN FORECLOSURE AND PRESCRIPTION?
It is common to confuse prescription and foreclosure period insofar as the expiration of the period results in the impossibility of pursuing a legal action , whether it is an action for payment, an action for nullity of a contract or the lifting of an option.
To illustrate this confusion, it is not uncommon to hear of a “debt foreclosure period” when an acknowledgment of debt is subject to a limitation period set at 5 years in accordance with article 2224 of the Civil Code.
Yet foreclosure is distinguished by its much more drastic regime.
Is asked in a general way: Personal and movable actions are prescribed by 5 years.
Cannot be raised ex officio by the judge.
May be interrupted and suspended: the interruption erases the limitation period acquired and causes a new period of the same duration to run, while the suspension of the limitation period temporarily stops the course without erasing the period already run.
Is planned for such or such action:
There is no foreclosure without text. In matters of appeal, for example, the litigant has a fixed period of one month to act on pain of being foreclosed.
Can be raised ex officio by the judge: it is of public order
Can be interrupted but not suspended
WHAT IS THE FORECLOSURE STATEMENT: DEFINITION?
In principle, foreclosure definitively prohibits the action of the person against whom the time limit has run. However, the legislator has considered in exceptional cases, the possibility of resorting to foreclosure statements then making it possible to rule out the effects of the inadmissibility incurred.
By way of illustration, the litigant who has let his one month time limit pass to appeal is foreclosed, but can apply for a foreclosure statement on appeal, if he was not aware of the judgment in time. Useful for exercising his remedy, or if he was unable to act.
LATE DECLARATION OF DEBT: CAN I BE RELIEVED OF MY FORECLOSURE?
The issue of the foreclosure statement is a recurring issue in insolvency proceedings.
As part of the reorganization or judicial liquidation of their debtor, creditors must declare their claim to the judicial representative to obtain reimbursement of the sums of money owed by the company in difficulty.
However, if the declaration is not made within two months from the opening judgment, the creditor is foreclosed and cannot be admitted to distributions and dividends.
It is in this context that it may be judicious for the creditor to have recourse to the foreclosure statement in the event of compulsory liquidation, Provided that it can be established that its default is not due to its fact or that it is due to a voluntary omission by the debtor when establishing the list of his creditors.
HOW LONG DOES IT TAKE TO FILE A FORECLOSURE STATEMENT REQUEST?
The deadline for notice of foreclosure is set at 6 months from the publication of the judgment opening the reorganization or liquidation proceedings.
Consequently, the creditor and the debtor are summoned to a hearing to present their observations before the judge commissioner of the procedure who will decide whether or not to accept the debt.
The decision of the judge commissioner may be appealed to the court within 10 days of the communication or notification.
Finally, the creditor will have a period of one month from the decision to declare his claim. The drafting of a request for a foreclosure statement or a statement of claim via a template found on the internet is possible, but the use of a legal professional is strongly recommended.
BUYING A HOUSE AT AUCTION
Have you ever thought about buying real estate at auction? This type of sale has many advantages for buyers, in particular the possibility of benefiting from a price which is sometimes much lower than those on the market. Follow this guide to learn how the different real estate auctions work and how to properly prepare to participate.
HOW TO BUY A FORECLOSED HOME BY BIDDING ON HOUSING AUCTIONS
Everyone knows the auction. Who hasn’t had the opportunity to buy something on eBay before? You just thought – like many others – that auctions were reserved for personalities and collectors wishing to part with high-value items, or at best for individuals wishing to sell small personal belongings. It is little known, in fact, that real estate can also be exchanged through this means.
Auctions are often an opportunity to do excellent business, as the goods presented are intended to be sold quickly – these are, most of the time, houses or apartments seized by the courts, or that a owner must sell as soon as possible. But this is not always true: technically and legally speaking, any owner can voluntarily put his property up for auction. The prices are sometimes very below the market, which can be advantageous if you want to buy in a big city where the costs tend to go up.
Of course, in the context of auctions, you cannot acquire new real estate or benefit from the tax advantages that generally accompany this type of acquisition, such as the Pinel device .
Also, as a buyer, you cannot walk into an auction house and seek to acquire goods there without being properly prepared, and without knowing the rules. You should first know that there are two types of auction for goods: notarial or judicial auctions, called “candle” or “chronometer”; and online real estate auctions, which partly operate on a model similar to traditional sales.
The notarial or judicial auction
The notarial or judicial auction is the classic form: a public of buyers raises the stakes from a starting price, and the auctioneer knocks down his hammer up to three times to adjudicate the sale. There are all kinds of heterogeneous objects, trinkets, furniture, jewelry, old books, masterpieces, clothes or accessories that belonged to stars, etc. Real estate is sold there in the same way, except that it is not shown to the public during the auction.
Judicial or notarial auctions?
The main difference between notarial and judicial sales relates to the origin of real estate. In the case of a judicial sale, the assets most often belong to unlucky debtors, and have been seized in order to repay a debt. Notarial sales, on the other hand, concern goods from public domains or estates without heirs. When an individual wishes to sell his property in this way, he must go through a notarial sale. The best deals are made in court sales, because the assets must be transferred quickly; but it is also a type of acquisition which is ethically more difficult to assume.
Auctions take place “by candle” or “against the clock”. When you participate in a “candle-lit” auction, the notary lights three fast-burning candles (a few tens of seconds); the auction stops when the last candle has been consumed, and the property is awarded to whoever made the best bid. If you attend a sale “against the clock”, each auction follows a time interval of 90 seconds at the end of which, if no one has outbid, the property is sold at the last bid pronounced.
WHAT GOODS CAN I BUY AT AUCTION?
All types of real estate can be acquired in the auction room:
• Entire building
• Professional premises
• Commercial buildings
• Bare land
All geographic areas are concerned, and the seller can be an individual or a legal person. Sales take place in the chambers of notaries in the region in which the property is located.
HOW TO PREPARE FOR THE AUCTION?
An auction, whether notarial or judicial, it is getting ready. As with a classic real estate purchase, you can get all the information you need about the property. And better still: by virtue of total transparency, the study of the notary in charge of the sale provides you with a complete set of specifications (or terms and conditions), which lists everything you need to know about the property (work carried out, easements, conditions of sale, starting price, mortgage status, etc.).
The notary also organizes visits to the property, generally on Saturdays so that as many potential buyers as possible can participate. You have the right to three visits of two hours each before the day of the sale: take the opportunity to look at the property from top to bottom, to visit it at different times of the day, to ask any questions you may have. deem necessary. Be vigilant and make sure for yourself that the good is in the agreed condition.
PURCHASE BY AUCTION AND MORTGAGE
Important step: the financing of your acquisition. In a traditional sale, a condition precedent allows you to cancel the purchase in case you do not get your loan. But in the case of an auction, this condition does not exist: you must therefore ensure upstream, with your bank, that you can take out your mortgage, so as to arrive, on the day of the sale, with guaranteed funding.
Remember that auctions involve… overbids! This means that the starting price, well below the market, will not be the final sale price, and that this will depend on the offers made by the other candidates for the purchase. You must therefore calculate the maximum amount that you will be able to put before placing an auction, by including all the costs (for the notary, for the public authorities, for the organization of the auctions). Note that the notary’s fees are higher than those for a traditional sale (1.65% of the purchase price above € 60,000) and that public authority fees vary depending on the department. Find out well in advance and do not bid you could not afford!
THE PROGRESS OF THE SALE
To be able to participate in an auction, you must have a valid ID and leave a cashier’s check on consignment with the Chamber of Notaries, for an amount equal to 20% of the sale price for an auction. by candle, and 10% for a stopwatch auction. You will obtain, in exchange, an authorization to bid. You must be present in the auction room or be represented: impossible to bid remotely.
Did you acquire real estate through this? You will have between 45 and 60 days (candle / chronometer) to pay the full amount. If you find yourself in default of financing and cannot pay, new auctions will be organized for the same property… at your expense. In very rare cases, another person may outbid within ten days of the sale, even if you won the property. This risk is minimal, but it does exist.
If you are in the opposite case, that of the seller who wishes to sell his property to notarial auctions, you will find the procedure on this page, as well as a comparison of the advantages and disadvantages.
Online real estate auctions
Notarial and judicial auctions are not the only opportunities to buy property through this means. In recent years, The principle of online real estate auctions has been developing, a process which is inspired by classic auctions as much as traditional real estate transactions, offering the best of both systems.
ESTATE AUCTIONS: 1 ST PART
Online real estate auctions are divided into two parts. The first borrows from the traditional sale: you locate a property, contact the real estate agent in charge, and visit the house or apartment by gleaning as much information as possible. The major difference is that you do not have to formulate an offer to purchase: the agent explains the principle of the auction, gives you access to all the necessary documents, informs you of the call price of the property. (generally 20% below market prices) and the start date of the auction. You go home and think: do you want to buy this property? How much are you willing to put in?
ESTATE AUCTIONS: 2 E PARTS
The second part is similar to traditional auctions, but everything is done online. You register on a dedicated platform (this one, for example) after having been “validated” by the real estate agent. Once the sale has started, you can place a bid. Throughout its duration (between 24 and 48 hours), you have access to the offers made by other potential buyers and can choose to outbid, depending on your budget. The peculiarity of this type of transaction is that the seller is not forced to accept any of the offers made during the auction: if no price suits him, he can simply refuse to sell his property.