It often happens that a bank that grants a loan and obtains, in the event of default, a temporary mortgage, which turns into a final mortgage.
The bank then initiates a payment action and a real estate foreclosure procedure.
The debtor can then oppose that the action in payment is prescribed, in particular by asking the judge to note the two-year prescription of the action in payment of the bank.
The owner of the hypothecated property, who obtains this prescription, must then summon the hypothecary creditor for the purposes of obtaining the cancellation of the hypothecary registration.
Often, the Enforcement Judge distinguishes between the mortgage action and the personal action to refuse the cancellation of the mortgage registration.
Certain decisions of the Court of Appeal ( CA Poitiers, 2e ch. civ., 20 nov. 2018, n ° 17/02110), while noting, the prescription of the action in payment, considered that the bank had only prohibition to require the performance of the obligation.
The banks considered that the privilege attached to the debt subsists, so that they could act in compulsory execution on the basis of the authentic instrument even though it is deprived of the right to act in execution of the obligation.
The prescription did not have the effect of extinguishing the title evidencing the debt, that is to say the deed of loan.
By judgment of November 20, 2018, the Poitiers Court of Appeal confirmed the judgment referred by arguing in particular that:
— prescription of the action for payment resulting from the application of Article L. 137-2 of the Consumer Code(today C. consom., art. L. 218-2) concerns the action taken by the professional and does not extinguish the right of the creditor but only prohibits him from demanding performance of the obligation;
— it follows that the mortgage being the accessory of the debt, it subsists despite the extinction of the action of the bank.
The husband then lodged an appeal in cassation before the Cour de cassation.
The High Court censured this reasoning by an unprecedented judgment (Cass. 3e civ., May 12, 2021, n ° 19-16.514: JurisData n ° 2021-007142), on the basis of article 2422 of the Civil Code, in the following terms: « By specifying that the prescription is acquired by the debtor who remains the holder of the mortgaged property by the time fixed for the prescription of the action which arises from the main obligation of which the mortgage or the privilege is the accessory, the drafters of the code civil wished to proscribe the rule of the old law, according to which the mortgage action would survive the prescription of the personal action by becoming the accessory of a natural obligation, and, on the contrary, to make the prescription of the claim coincide. and the extinction of the mortgage. To admit that the mortgage or the privilege can survive the prescription of the action in execution of the principal obligation would call into question this objective, by allowing the exercise of the mortgage action after prescription of the personal action. It follows that the prescription, whether it concerns the principal obligation or the action in payment entails, by implication, the extinction of the mortgage or the privilege ”.
The High Court therefore decides to no longer differentiate between the prescription of the principal obligation and that of the action in payment to determine whether or not there is extinction of the real estate security (lien or mortgage), which constitutes the accessory to the claim.
It is therefore a cause of extinction of the mortgage by extinctive prescription.
It should be noted a recent decision of the Rennes Court of Appeal, in a decision of January 29, 2021(CA Rennes, 2e ch., Jan. 29, 2021, n ° 19/07467), who judged, “Regarding the prescription of the action for the recovery of a guaranteed debt, that the bank’s failure to act before the prescription date, the mortgage expired, following the extinction of the main obligation. “
This is the situation in which the claim, guaranteed by the mortgage, is time-barred, which incidentally leads to the extinction of the mortgage and the justification of a cancellation request.
Consequently, when the judge finds the acquisition of the two-year prescription of the bank’s action for payment against the consumer, this will lead to the extinction of the mortgage.
This decision will allow the owner of an asset encumbered by the security, to demonstrate that the action in payment of the creditor is time-barred.
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