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Category Archives: State

Whoops! Are We Back On The Roller-coaster?

After the exhilaration of the past couple of days, family and I had to get our feet back on the ground and our heads back on our shoulders, the reality is that we still have a long way to go. We’re nowhere near getting out of la forêt, yet! We must still face the daunting experience of our Case being judged at the Cour de Cassation in Paris.

So, today, in response to many questions that I have been asked by folks living all around the world, I’m going to ‘chat’ about potential next steps. I won’t go into the entire workings of the Cour de Cassation, I’m certain that would be boring to read, and I know it would be a very cumbersome post for me to write! The information I will give is based on data sent to me by various legally and part-legally qualified professionals, one of whom actually works within the austere confines of the Cour de Cassation, on my own research, and on verification of my own and others’ research.

How much information have I received from four (to date) avocats, including our specialist Cour de Cassation avocat? None, absolutely zilch!

The Cour de Cassation is the highest Appeal Court in France, it’s the Supreme Court. To get a Case to the Supreme Court, it must first be heard in one of the Tribunaux d’Instance local Courts, or in one of the Tribuneaux de Grande l’Instance Courts. The latter depends on the severity and the monetary value of the dispute. Our Case was initially heard in the Grande l’Instance Tribunal in Aurillac (15).

The history of the French Cour de Cassation goes back to the French Revolution, it was established by the Act of 27 November 1790. But, the Court’s workings are still largely based, in principle, on the ancient Roman judicial proceedings.

Within the Court, there are six main sections in which a Case can be judged, these sections are as follows: Commercial, Labour, Civil, Criminal 1, Criminal 2, and the Chambre de Requetes – the last gives judgement on whether or not a Case is admissible for Appeal at the Supreme Court. During my conversation with Maitre at l’Huissier’s office in Mauriac, it emerged that our house Case has got through the Chambre de Requetes, and that is why we now have some action! Although, we have not received written confirmation, that might be one of the documents waiting for us at l’Huissier’s office, or at the house. We will find out towards the end of April.

Our house Case was referred to the Civil section of the Cour de Cassation, but a number of professionals have commented, during the past 2 years, that it should be heard by judges in the Criminal 2 section, because our sellers’ fraud has already been proved. Those professionals might well be correct!

If the Claimant fails to win in one of the lower Courts, an Appeal can be lodged in the Region’s Tribunal d’Appel; ours was Appealed at Riom in the Puy-de-Dome (63).

Failure to win the regional Appeal can result in a further, final Appeal to the Cour de Cassation, Paris. The judges in the Supreme Court do not judge on the merits of the Case, they are in situ to decide whether or not French laws have been correctly interpreted during the previous Hearings.

What sort of result may be seen coming out of the Cour de Cassation where our Case is concerned? Well, the previous Appeal decision can be upheld, and in that case, there will be no further French legal action, it would be all over as far as the French judiciary are concerned! Or, the previous Appeal Court decision can be quashed, and the Case can be returned to the Appeal Court in Riom for further consideration and a fresh Judgement. The Cour de Cassation might decide to quash the previous Appeal Court’s decision and order that there will be no further Appeal, the Cour de Cassation decisions about the Case will then be final.

Our Case will be heard by a panel of at least 5 judges, presided over by the Cour de Cassation President, or, a possibility, the most senior Cour de Cassation Judge.

There are a number of potential results.

The judges can decide that our Case is a straight forward vice caché and order the property to be returned to Monsieur and Madame T, with a full refund to us, and with no leave given for the couple to Appeal. On average, it would take 4 – 6 months for the final resolution to be attained, and the judges decision must first be endorsed by the Court President.

The judges can decide that, on grounds of the vice caché having been proved at Riom, the Case must be returned to the Riom Appeal Court for further consideration and a fresh judgement. That would delay the final resolution by up to a year.

The judges could rule that we, Tom and I, are partially responsible for the vice caché, due to whatever reasons they decide on the day. In that case, they could refer the Case back to the Riom Appeal Court for further considerations and a fresh judgement.

The judges could rule that our vice caché claim has been proved, but give Monsieur and Madame T leave to Appeal. That could result in us waiting for an Appeal to be lodged by our sellers, and the Case could drag on for a further period of one to possibly up to three more years.

Our fervent hope is that the Cour de Cassation judges find fully in our favour, with no right of Appeal to our sellers, and with an order that a total resolution must be attained within 28 days.Such a Judgement is rare, but it does happen, and it would need to be endorsed by the Court President.

If we are lucky enough to receive the justice for which we fervently hope, our sellers could plead poverty and state that they’re unable to refund our money! In that event, the Cour de Cassation judges can order them to give us their own home in return for taking repossession of our house that’s not a home, and they would need to live in the latter! Or, the judges could order that property and possessions, belonging to our sellers, must be auctioned and the proceedings used to refund us. That Judgement would need to be endorsed by the Court President.

According to a very knowledgeable source, our sellers are most likely to plead that they have shared their property and possessions among their children and grandchildren! In that case, the judges can order those items to be seized by l’Huissier, assisted by Gendarmes, and the property and possessions to be auctioned, with the proceedings used to refund us. Again, such a Judgement would need to be endorsed by the Court President.

So, there are many possibilities! At the end of it all, will we recoup all of our losses? Very possibly not! But, that’s another story!

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A Good Doctor And A Pleasant Bailiff!

Such a huge relief, Tom’s chest x-ray showed nothing more sinister than congestion and infection, just as the doctor thought would be the current situation. So, armed with a change of inhalers, antibiotics, 5 days worth of Prednisolone pills, and a rather “pleasant fruity decongestant drink” (Tom’s words), he is set to recover from this latest lung infection. Several digits are crossed for that outcome, and Tom will return to the doctor on Thursday morning for an updating examination and assessment. Voila!

So, with a much lighter heart, I telephoned l’Huissier’s office in Mauriac, I was fully prepared to hear news of a less than positive calibre! Almost five years of negative results and lost battles were very much to the fore in my mind, although, nothing could reduce my relief that my wonderful husband will soon be well enough to return to our ‘thought showers’ sessions regarding the house Case. I have used the alternative expression to ‘brainstorming’ because, as a retired teacher, I am aware that the original term is politically incorrect, despite the fact that it is very much more appropriate to what actually happens during the sessions!

The clerk who answered my call struggled with my French language skills, so, I used two of my better stock phrases, told her my name and asked to speak with the English-speaking gentleman with whom I have had several conversations through the years. That gentleman was “out of the office”, but, the phone was passed to the Maitre. Brilliant, straight to the top!

Maitre was very pleasant, extremely reassuring, I really did have the feeling that she is definitely on our side! Using a combination of facts, clear empathy, superbly appropriate humour, and concisely worded phrases that I was able to fully understand without any difficulty, this is what I was told by the Maitre.

Both locataires have been given formal Notice to Quit the property on or before 30th September 2012. If either locataire is still in the property on 30th September, l’Huissier and supporting Gendarmes will carry out eviction processes on 1st October 2012. The Cadastral (Department Land Registry) has been given a Court Order to have the locataires removed, l’Huissier has also been granted a Court Order to ensure the eviction processes are actioned, if necessary. It was l’Huissier Maitre who served the formal Notices to Quit the property.

I tentatively expressed my concerns about the resident locataire, Monsieur C, he is not rational when he feels he is under pressure! Laughing, Maitre immediately agreed with me – she has obviously already had a run-in with him! However, she told me the Court Orders have been issued to a Government Department, ie the Cadastral, and l’Huissier have been granted their enforcement powers as Government representatives upholding the laws of the State. Maitre told me that Monsieur C can object as much as he wants to, nothing will stop the processes being carried through on the dates given. I told Maitre that I felt Monsieur C would not wish to be observed by the neighbours during an enforced eviction, she agreed with my comment and told me his possessions would simply be thrown out via a window, and he would be escorted off the premises by as many Gendarmes as required; that would be explained to Monsieur C by letter before 30th September 2012.

Maitre then explained to me that both locataires will require tenancy references from their former landlords to obtain alternative rental premises. To that effect, the hairdresser has paid l’Huissier to deliver a tenancy reference request letter to Tom and me. Here we go, I thought! I informed Maitre that Tom and I are not qualified or prepared to give references, because the locataires are nothing to do with us. Maitre commented that they require references from us because we are the owners of the property. She then listened, without interrupting, while I briefly clarified to her the facts of our vice caché suit.

When I stopped speaking, Maitre asked, “Did Madame T give the locataires their tenancy contracts?”

I told her, “Yes, and we knew nothing at all about the current hairdresser until months after we purchased the property, despite the conveyancing notaire having presided over the sale of the shop Lease, months before we purchased the property.”

Maitre commented, “Classic vice caché, Madame Baxter. So, Madame T can provide the locataires with their references. I will write to her, today, and I will deliver the letter in person. There are documents here for you to collect, I need your signatures for you to receive them. Documents were also delivered to your property in Champagnac, I understand that you and your husband are happy for your neighbour, Madame ZC, to hold them safely for you, yes?”

I agreed with Maitre and told her we would collect all the documents from her office, towards the end of April, and Madame ZC has already forwarded mail from the house to the address of our friends in the Gers, from where we will collect them when my husband is well enough to travel. Maitre replied that she hoped my husband recovers fully and quickly, and she thanked me for phoning her.

Nothing was mentioned about the hairdresser’s outstanding, unpaid water rates bills!

Well, can’t get more positive than that! Or, should we wait until we have all the documents to hand, translated, read and fully understood, before we celebrate? Family and I have decided the latter is prudent!

Since yesterday, I have received many very kind messages of support, and several comments about us being able to move into our house that’s not our home on 1st October 2012. That can’t happen! Our vice caché lawsuit is designed to return the property to our fraudulent sellers, as though we had never purchased it, to receive a full refund of the purchase costs including all monies spent on improvements prior to the proceedings starting, eg the double-glazing. The vice caché lawsuit was not brought to remove the tenants.

Even if we were to move into the house, we would still have no electricity and no sanitation, and we would still not be able to legally make good the electrical and plumbing installations.

Yes, after 1st October, we could drop our vice caché Case – would you?

 

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What Does The Future Hold?

Blogging our experiences has caused us grief, there’s no doubt in my mind about that! Quite simply, living the experiences put us on a roller-coaster that hadn’t stopped since July 2007. Being able to take time out from that constant movement during the past eight weeks gave us a false sense of security. My menfolk and I are tired, so very tired, and our emotions are raw. If that reads as dramatic or weak, I make no apology, we had long forgotten how to feel angry, disappointed, frustrated, betrayed and defrauded. All those emotions have returned, in force since I started writing this blog. But, we are well aware that we must keep going, there’s no way back, that’s reality.

On Wednesday this week, we ‘celebrated’ 5 years of living in France. But, we didn’t really celebrate, we just spent time recalling events of the past five years! Wednesday was a very solemn day in this household! I think our recent recollections, for this blog, had dragged all our emotions to the surface, emotions that we have constantly strived to keep under lock and key, metaphorically speaking.

So, on Thursday, to get us back on track, to buoy up our spirits without setting ourselves up for a fall, we talked about our future. Obviously, our plans are subject to that old adage, all things being equal!

We are fully aware that even an emphatic Cour de Cassation judgement in our favour will not immediately have a practical effect on our lives. Although our sellers would not be able to appeal the Court’s decision, they could use ‘accepted’ delaying tactics for up to six months, and force us to return to the Appeal Court to obtain legal enforcement. We firmly believe our sellers would do that. The only way that would be scuppered by the Cour de Cassation is if the Judge orders all arrangements to be finalised within 28 days. Such an Order can’t be undermined in any way, within the French justice system, that would be the final word. However, 28 days Orders are extremely rare in the French Supreme Court!

If we are awarded that 28 days Order, our sellers could then state that they have bequeathed all their assets to family members; our sellers are, like Tom and me, over State retirement age, they may already have done that, hoping to avoid giving us back our money! In that event, we would need to take our Case back to the Cour de Cassation for further consideration and judgement! The Judge could then place an Order on the family members to pay us. Although, that’s not likely to happen! Most likely, the Judge would make an Order for the sellers’ bequeathed assets to be sold by auction, and for us to be paid out of the profit. That would take time, estimated at 3 to 5 months.

Prior to bringing the lawsuit to the first Tribunal, our (then) avocat, Monsieur MA, ran checks to ensure our sellers had the funds or assets to use for settling repayment to us. The outcomes of those checks revealed that our sellers were property €millionaires. Had they not been in a position to refund us for the house purchase, it would not have been in our best interests to bring the lawsuit. We were assured by Monsieur MA that our sellers had the assets, even if not the ready funds, to refund us for the fraudulent sale.

Yet another aspect for us to consider is the fact that the Courts now know our sellers also defrauded the State, through tax evasion. It is possible that the more recent charges will take precedence over our Case. We have no way of knowing if the tax evasion charges are being dealt with even as we wait for a Cour de Cassation hearing date. If the tax evasion Case is under way, we may yet discover that the State will be paid before us!

But, all things being equal, we plan to purchase building land in France, and to have a property built, a ‘pukka  log cabin’, in our grandson’s words!

 

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