Claims and limitation periods

Claims and limitation periods

"I would like to know whether a creditor is entitled to obtain several certificates of default for the same debt? When a creditor receives such a deed, he has 20 years to collect his debt. However, when the creditor brings a new action on the basis of the first certificate and the debtor is still insolvent, a second certificate of default is issued. If the limitation period starts running again from the date of the second certificate of default, doesn't this mean that the 20-year limitation period can be transformed into an imprescriptible period?

Mario, Onex

If a creditor has taken part in proceedings against his debtor by way of seizure and has not been paid in full from the proceeds of the realisation of assets, the debt-collection office will issue him with a so-called "final" loss certificate for the unpaid balance.

The law attaches several effects to the issue of such a document.

In particular, it gives the creditor the prerogative of requesting a new debt collection action within six months of receiving this document, without having to go through the preliminary stages of serving a summons to pay and lifting any opposition.

Once this six-month period has elapsed, the creditor must follow the ordinary procedure, but has an advantage in that the deed of default constitutes an acknowledgement of debt that temporarily removes any opposition the debtor may have to the summons to pay that will be served on him.

In both cases, if the debtor's assets are still not sufficient to pay off the creditor, the latter will be issued with a new, definitive certificate of default in respect of the unpaid balance of his claim and will be able to initiate new proceedings on this basis, and so on.

It should be noted that the issuing of a certificate of default also has civil consequences. A claim established by a deed of default is time-barred 20 years from the date on which it is delivered to the creditor. It should be noted that the claim becomes time-barred at the latest one year after the opening of the debtor's estate.

It is therefore correct to say that if the creditor is issued with a second deed of default after proceedings have been taken against the debtor, the creditor will benefit from a limitation period running from the date of issue of the second deed. However, this does not render the original claim 'imprescriptible', since the previous deed is not thereby extended; only the new action by the diligent creditor justifying an updated assessment of the debtor's situation will be sanctioned by a deed of default for the unpaid balance.