Unpaid bills: which procedure to choose?

In the event of a recalcitrant debtor, there are several procedures available to the creditor to recover his or her debt. It is essential for the creditor to choose the right procedure, depending on the complexity of the case, to guarantee every chance of success.

• An essential prerequisite: formal notice

No legal action can succeed if the creditor has not sent a formal notice to the debtor.

This compulsory preliminary phase, known as the “pre-litigation phase”, has two objectives, (i) the amicable collection of the debt and (ii) safeguarding the creditor’s rights.

To be fully effective, formal notice must comply with certain formalities.

In this letter, the creditor will ask the debtor to settle its claim within a specific timeframe. The words “mise en demeure” (formal notice) give the creditor’s request an official status.

• A lawyer can help you draw up this letter, which is all too often neglected in practice.

Legal proceedings :

• Injonction de payer: a simplified debt collection procedure

This simplified legal procedure is suitable when the debt originates from a contract.

The claim must be certain, liquid and due. Above all, the claim must not be reasonably contestable by the debtor.

The claim must contain several mandatory items of information, in particular the amount of the claim and the basis on which it is based.

• Please note: if any information is missing, the application will be rejected.

The request must be sent to the clerk’s office of the competent court.

If the judge deems the documents produced to be sufficient, he will issue an order for payment, which will then be served on the debtor within six months, failing which the order will be deemed null and void.

Note that a debtor who has been served with an order to pay may lodge an opposition to the order within one month of service of the order, except where the order has not been served personally, in which case the one-month period runs from the first document served on the debtor or the first enforcement action taken against him on the basis of the order.

In the absence of opposition from the debtor within the time limit, the order for payment becomes an enforceable title likely to justify the implementation of forced execution.

It is up to the creditor to choose the most appropriate enforcement measure, such as seizing the property and/or bank account of the defaulting debtor.

• The plusses: speed and efficiency.
• The disadvantages: in the event of a dispute, the case is referred to the competent court for a ruling on the merits.

• Referral procedure

The summary procedure is a legal procedure that allows creditors to act quickly before the court. Unlike injunctions to pay, this procedure respects the adversarial principle, so the debtor can defend himself before a decision is handed down by the President of the competent court.

Here, the judge issues a provisional decision: the case is therefore not definitively settled.

The President of the competent court may grant an advance on a final judgment, when the existence of the obligation is not seriously disputable.

Example: If the judge has to interpret the stipulations of a contract, this constitutes a serious dispute which the interim relief judge does not have the power to hear.

• Advantages: summary proceedings enable you to obtain a decision more quickly than proceedings on the merits, since the summary order does not settle the main issue. Litigation leading to a conviction is therefore simpler and faster.
• The disadvantages: the fact that the claim is not settled by a decision on the merits of the case is less reassuring for the creditor, since the summary order may subsequently be challenged by a decision on the merits of the case. The interim relief judge will only award an advance on the disputed invoices, which prohibits the creditor from claiming damages or late penalties.

• Subpoena on the merits

Referral to the judge on the merits is the “normal” procedure, while summary proceedings are the “exceptional” procedure.

The juge des référés, the judge of obviousness, has a restricted jurisdiction: he can only rule in cases of urgency or if the existence of the obligation in dispute is not seriously contested.

In the case of a summons on the merits, the decisions rendered are res judicata, unlike those rendered in summary proceedings, which are provisional.

Once the judgment has been handed down by the court, the creditor will have a writ of execution enabling him to recover the sum should the debtor fail to comply spontaneously.

• Benefits: A decision that resolves the dispute in its entirety, regardless of its complexity;
• The disadvantages: Duration