When the same person becomes personal guarantor for the commitments of a debtor to a credit institution and also assigns him one or more assets as mortgage guarantee for these same commitments, this credit institution owes him the annual information provided for by the Article L. 313-22 of the Monetary and Financial Code .
Court of Cassation, civil, Commercial Chamber, June 2, 2021, 20-12.908, Published in the bulletin
It is relatively common for a person to assign one of his goods as security for the debt of others, in this case it is a pure real security for others and not a suretyship ( CCass Mixte. 2 Dec. 2005 n°03-18.210, Com. Nov. 25, 2020, n° 19-11.525 ) .
On the other hand, it is rarer for the parties to clearly agree to enter into a suretyship in addition to a real security, although this situation presents a significant advantage for the creditor who will always be able to avail himself of the principle of security. real in the event that the surety proves ineffective for its own cause.
By a judgment delivered on June 2, 2021, the commercial chamber of the Court of Cassation came to specify the terms of application of the security system.
In this case, a bank had granted loans to two companies as well as various overdraft facilities and discount lines. The manager of these companies, as well as another person, acted as joint and several sureties for the said companies and pledged real estate belonging to them as collateral.
The debtor companies having been placed in compulsory liquidation, the bank had the guarantors issued with a writ of seizure of property, then summoned them for an orientation hearing before the enforcement judge. They then raised several disputes, in particular by invoking the bank's failure to comply with its obligation to provide annual information to sureties relating to the amount of the debt, provided for by article L. 313-22 of the monetary and financial code, and by requesting, consequently, that the payments made by the debtor company be allocated in priority to the principal of the debt without taking account of interest.
Indeed, according to article L.313-22 of the Monetary and Financial Code , the credit institution having granted financial assistance to a company under the condition of the guarantee by a natural person is required to inform the surety of the statement of the guaranteed debt, failing which, the credit institution forfeits interest.
In a judgment delivered on March 28, 2019, the Versailles Court of Appeal ruled in favor of the credit institution on the grounds that article L.313-22 of the Monetary and Financial Code is not intended to apply. apply in the context of real security.
This position was censured by the Court of Cassation which considered that " by ruling thus, after noting that in addition to the mortgage assignment of the building, Mr. [W] and Mrs. [H] had surrendered personal guarantees of loans granted to debtor companies, so that the bank was bound by the obligation of annual information provided for by article L. 313-22 of the monetary and financial code, the court of appeal violated the aforementioned texts . »
Thus, although real security is not subject to the suretyship regime and, a fortiori, to the application of article L.313-22 of the Monetary and Financial Code, the application of this regime cannot be ruled out once that a personal guarantee was also granted.
