The most common way to revive enforcement proceedings without a court judgment that have been halted by the debtor's objection to the payment order is an action for annulment of objection. It is a collection lawsuit in which the creditor proves the existence of its claim before a general court and asks for the debtor's objection to be annulled.
Requirements and deadline
The action must be filed within one year of service of the objection on the creditor. This is a peremptory deadline that cannot be extended. Depending on the nature of the claim, the competent court may be the civil court of first instance, the commercial court of first instance, the consumer court or the labor court. For commercial claims and employee claims, applying to a mediator before filing suit is mandatory.
How it differs from removal of objection
If the creditor holds one of the documents listed in the Enforcement and Bankruptcy Law (No. 2004), such as an instrument whose signature the debtor has acknowledged, a notarized instrument, a document issued by a public authority or a loan agreement, it may ask the enforcement court for removal of the objection within six months. This route is faster, but the review is limited and the resulting decision is not res judicata on the merits. The action for annulment of objection, by contrast, is a full trial, and the final judgment is res judicata with respect to the claim.
Compensation for denial of the debt
If the court finds the debtor's objection unjustified, it awards compensation for denial of the debt of no less than twenty percent of the claim, provided the creditor requests it. For compensation to be awarded, the claim must be liquidated, meaning its amount must be fixed or determinable. Defenses such as the debtor claiming to have been unaware of the debt, or the claim having been partly paid, do not eliminate the compensation.
Practical notes for corporate creditors
- The statement of claim should be accompanied by a certified copy of the enforcement file, the underlying invoices and current account statement, and any delivery documents.
- The interest claim and the start date for interest should be stated clearly, and in commercial matters the advance interest rate should be requested.
- Once the case is won, the enforcement proceedings continue without waiting for the judgment to become final, and the attachment stage begins.
- To track the one-year deadline, the date on which the objection was served must be recorded in the file.