COURT OF APPEAL
FROM ANGERS
BEDROOM A – COMMERCIAL
CC/CG
STOP N °:
AFFAIRE N° RG 17/00694 – N° Portalis DBVP-V-B7B-ECXF
judgment of 02 December 2016
President of the TC of MANS
registration number in the first instance RG 2015006831
STOP OF MAY 11, 2021
CALLING :
SA SOCIETE GENERALE
[…]
[…]
Represented by Me Florence VANSTEEGER, lawyer at the MANS bar –
File number se1271
RESPONDENT :
Mr. YX
born the […] at […]
[…]
[…]
Represented by Me Frédéric BOUTARD from SCP LALANNE – GODARD – HERON – BOUTARD
– SIMON, lawyer at the MANS bar – File number 20150918
COMPOSITION OF THE COURT :
The case was debated publicly at the hearing on March 15, 2021 at 2 p.m., the lawyers not having opposed it, before Mr.me C, President of the chamber who was previously heard in his report.
This magistrate gave an account of the pleadings in the deliberations of the Court, composed of:
Mme C, President of the chamber
Mme ROBVEILLE, Councilor
M. BENMIMOUNE, Counselor
Clerk during the debates: Mme A
STOP : contradictory
Pronounced publicly on May 11, 2021 by making the judgment available to the court registry, the parties having been previously notified under the conditions of Article 450 of the Code of Civil Procedure;
Signed by Catherine C, President of the Chamber and by Sophie A, Registrar to whom the minute of the decision was handed over by the signing magistrate.
[…]
EXPOSE LITIGATION :
By mixed judgment delivered on December 8, 2020, to which reference should be made for the description of the dispute, the Court:
– overturned the judgment rendered on December 2, 2016 between the parties by the commercial court of Le Mans;
– dismissed Mr X of his claim for damages, in the absence of manifest disproportion of the guarantees subscribed;
– pronounced the partial forfeiture of the right to contractual interests of SA Société Générale against Mr. YX, as surety for loan n ° 211039001406 in the amount of 250,000 euros, of loan n ° 212138001404 of a amount of 100,000 euros and the credit opening associated with current account no. 30003 00861 00020046730 36;
– ordered Mr. X to pay the sum of 37,401.618 euros, with interest at the legal rate as of May 19, 2015 and annual capitalization, in favor of SA Société Générale under the guarantee of loan n ° 211039001406 of an amount of 250,000 euros;
– said that Société Générale SA must communicate to the respondent before January 15, 2021:
– with regard to the credit opening associated with the current account n ° 3000300861 00020046730 36 of the main debtor company, the bank statements from the first debit balance until the statement of March 30, 2014 and a statement of the redacted balance of all contractual interest applied for a debit balance;
– with regard to loan n ° 212138001404 of 100,000 euros, the complete amortization table and the statement of the amounts remaining due expunged of contractual interest from the first due date following March 31 of the first year of the loan until December 20, 2013, date of the last payment due, the payments made by the principal debtor company to be allocated as a priority to the payment of the principal of the debt;
– ordered the reopening of the proceedings at the hearing of March 15, 2021;
– dismissed Mr YX for his request for a delay in payment;
– stay of ruling on the costs and compensation claimed under Article 700 of the Code of Civil Procedure.
Having regard to the conclusions submitted on March 3, 2021 for SA Société Générale asking the Court to dismiss Mr. X of his claims, purposes and conclusions, to order him to pay him the sum of 35 799.90 euros, i.e. 50% of the 71 599.81 euros due by the main debtor company on April 20, 2012, in addition to the interest calculated at the legal rate as of May 19, 2015, with anatocism in application of article 1154 of the civil code, in addition to an indemnity of 5,000 euros to the title of article 700 of the code of civil procedure;
Having regard to the conclusions submitted on 1is March 2021 for Mr. X making the same requests as those presented in his last conclusions before the mixed judgment;
SURE THIS,
Sure the amount of the receivable from Société Générale SA in respect of the credit opening associated with current account n ° 30003 00861 00020046730 36 :
In the previous judgment, it was said that the bank incurred the forfeiture of the right to interest if it failed to comply with the obligation to inform the surety provided for in Article L. 113-22 of the Monetary and Financial Code, which should have been completed by March 31 of each year.
To determine the amount of its claim against Mr. X, the bank was asked to produce the bank statements from the first debit balance until the statement of March 30, 2014 and a statement of the balance expunged of all contractual interest applied. for debit balance.
The bank did not produce a statement of the balance expunged of all the interest integrated into the debit balance claimed but produced the statements of the account from January 2, 2012 until March 30, 2014, showing that the account became debtor on the 3 January 2012, so that on that date a tacit credit opening was granted, and debit interest has been entered in the account since January 3, 2012.
The penalty for forfeiture of the right to interest applies from March 31, 2012. Examination of the account statements shows that a sum of 6,301.42 euros has been deducted as interest since that date.
As a result, the bank’s claim amounts to the sum of 78,321 euros (84,533.42 – 6,301.42) with interest at the legal rate from March 14, 2015, the date of the formal notice.
Sure the amount of the claim of Société Générale SA under loan no.212138001404 of 100,000 euros :
To determine the amount of its claim against Mr. X, the bank was asked to produce the complete amortization table and the statement of the sums remaining due, expunged of contractual interest from the first due date following March 31 of the first year of the loan, until December 20, 2013, the date of the last payment due, the payments made by the principal debtor company to be allocated as a priority to the payment of the principal of the debt.
The bank did not comply with these requests and, in particular, did not produce an amortization schedule until the 27e due, from July 20, 2014. It limited itself to producing a table breaking down its receivable into unpaid installments from December 20, 2013 to November 20, 2014, in capital remaining due on 1is December 2014 and as a lump sum indemnity, thus applying a forfeiture of the term on 1is December 2014.
However, not having satisfied the information obligation imposed by article L.113-22 of the Monetary and Financial Code which should have been executed before March 31, 2013, the forfeiture of the right to interest applies to as of that date. The bank can therefore only require the capital that was still due on March 31, 2013, from which must be charged the monthly installments that were subsequently paid by withdrawals from the current account until December 2013, i.e. 16,392.69 € (9 X € 1,821.41).
Nothing in the file makes it possible to know the amount of capital remaining due at March 31, 2013, so that the bank did not enable the Court to calculate exactly its claim. As the amortization table was not produced until July 20, 2014, the capital remaining due on that date, ie € 57,185.56, will be taken into account, by default. After charging the sum of € 16,392.69, an amount of € 40,792.87 remains.
Mr. X, having stood surety for 50% of the sums due in execution of this loan, will be ordered to pay the bank the sum of € 20,396.43 with interest at the contractual rate of 3.55% from of March 14, 2015, date of the formal notice.
Sure additional requests :
Pursuant to article 1154 of the Civil Code in its version prior to that resulting from the ordinance of February 10, 2016, the capitalization of interest should be ordered in accordance with the bank’s request.
It is not unfair to leave each party to bear its costs not included in the costs.
The costs of first instance and appeal will be shared by half between the parties.
THROUGH THESE REASONS:
The Court, ruling contradictorily, by judgment made available to the registry,
Orders Mr. X to pay Société Générale SA the sum of 78,321 euros with interest at the legal rate as of March 14, 2015, date of the formal notice, in respect of the tacit credit by overdraft in a current account guaranteed by the bond taken out on August 10, 2011;
Orders Mr. X to pay Société Générale SA the sum of € 20,396.43 with interest at the contractual rate of 3.55% as of March 14, 2015 in respect of the guarantee for the loan of € 100,000 of April 13, 2012;
Orders the annual capitalization of the interest due under the two loans and the credit by overdraft in the account under the conditions provided for in Article 1154 of the Civil Code in its version prior to that resulting from the order of February 10, 2016;
Rejects the requests under Article 700 of the Code of Civil Procedure;
Holds that the costs of first instance and appeal will be shared by half between the parties.
THE CLERK THE PRESIDENT
S. A C. C
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