The reported judgment appears to confirm a popular adage that justice is blind. After having hit the mortgagee, his solution on the time of the consignment of the sale price of a building hits the third party holder of the mortgaged building …
In this case, a company had acquired an apartment from a couple. The apartment purchased was encumbered with two mortgages, which made the company a third party owner of the mortgaged building. This third party holder had then initiated the purge procedure, and considered having made the deposit within the meaning of Article 2481 of the Civil Code. He summoned the sellers and the mortgage creditors in order to obtain the cancellation of the registrations encumbering the building.
This request was declared inadmissible by the Court of Appeal, which considered that there was no deposit in this case, and that the building was still encumbered with the two mortgages. “Only a deposit receipt as provided for by Article R. 518-31 of the Monetary and Financial Code would be able to establish the deposit with the Caisse des Dépôts et Consignations”, according to the trial judges. Consequently, according to them, the payment notice, or “consignment transaction notice”, issued by this Caisse des Dépôts et Consignations (CDC) to a notary holding an account opened in the books of the latter does not not establish the consignment.
The third party holder therefore lodged an appeal on points of law, arguing, in the first place, that the “payment advice sent to the notary […] is such as to establish the deposit made with the said Fund ”, and, secondly, that the payment notice to the notary’s compulsory deposits account at the CDC constitutes a deposit receipt within the meaning of article R. 518-31 of the Monetary and Financial Code.
The first question posed by the appeal was therefore whether the notice of payment to the compulsory deposit account at the CDC, sent to the notary holding the account, is such as to establish the deposit of the price of the building as provided for in Article 2481 of the civil Code.
The Court of Cassation replied in the negative. It recalls that it had already decided that “the payment to the Caisse des Dépôts et Consignations of the price of the sale was not equivalent to the deposit provided for by article 2435, paragraph 3, of the Civil Code (Civ. 3e, Jan. 28, 2015, n ° 13-24.040, Bull. civ. III, No. 14; D. 2015. 316 ) ”, And considers that“ likewise, the …
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