Cassation — defence to application

'S.C.P. A. BOUZIDI Advocate to the Conseil d'Etat and to the Court of Cassation 125. boulevard Malesherbes Tel.: 01.47.66.38.00 Fax: 01.46.22.98.43 Defence to removal from the list no. 3 784 Hearing of 7 March 2001 TO MR PRESIDENT CASSATION OF THE THE FIRST COURT OF OBSERVATIONS IN DEFENCE ON THE APPLICATION FOR REMOVAL FROM THE LIST OF APPEAL NO. X - 00 - 14 447 (ARTICLE 1009 - 1 OF THE NEW CODE OF CIVIL PROCEDURE) FOR: 1°) Monsieur Bernard COLLORAFI, 2°) The S.A. SEBOL, 3°) The S.A.R.M. B et O, 4°) The S.A.R.L. LES PINS, Having as Advocate to the Court of Cassation, the S.C.P. A. BOUZIDI, AGAINST: The S.A. MAC DONALD'S FRANCE, Having as Advocate to the Court of Cassation, the S.C.P. DELAPORTE-BRIARD, By judgment dated 8 March 2000, the Court of Appeal of PARIS found that the termination of the agreements binding the applicants to the Company MAC DONALD'S FRANCE was wrongful and that as a result, it had incurred liability. The Court of Appeal ordered the Company SEBOL and Monsieur COLLORAFI to pay to the Company MAC DONALD'S France the sums of: 1,867,244.84 F, as unpaid fees (royalties) prior to 2 January 1998, plus legal interest, and 1,272,000 F as fees (royalties) from 2 January to 9 June 1998. The Court of Appeal ordered, jointly and severally, the Company B et O, applicant, and Monsieur COLLORAFI, applicant, to pay to the Company MAC DONALD'S France, the sums of: 1,533,548.87 F as unpaid fees (royalties) up to 2 January 1998, plus late-payment interest, and that of 1,113,000 F as fees (royalties) for the period from 2 January TO 9 June 1998. The Court of Appeal ordered, jointly and severally, the Company LES PINS, applicant, and Monsieur COLLORAFI, applicant, to pay to the Company MAC DONALD'S France: the sums of 504,474.42 F, as unpaid fees (royalties) prior to 2 January 1998, plus late-payment interest, and of 1,272,000 F for the period from 2 January to 9 June 1998. Moreover, the Court of Appeal ordered the Company MAC DONALD'S France to pay to Monsieur COLLORAFI the sum of 240,330 F as damages, in compensation for his loss of the chance of having a salary income. The Court furthermore ordered the Company MAC DONALD'S France to pay to the applicants the sum of 4,528,333 F, plus legal interest from 13 December 1999, as well as to pay the sum of 100,000 F to Monsieur COLLORAFI, in compensation for his moral loss. The applicants have lodged an appeal to the Court of Cassation against this judgment, appeal registered under no. X - 00 - 14 447. The Company MAC DONALD'S France has referred to you, Mr First President, an application seeking the removal of the appeal from the list, maintaining that the applicants would remain indebted for a sum of 2,837,763.84 F. As regards the balance alleged by the Company MAC DONALD'S France, the applicants wish first to recall: Balance of the order against the applicants: - 7,662,592.94 F. Balance of the order against MAC DONALD'S France: 4,902,805.37 F, in favour of MAC DONALD'S France a sum of 2,759,787.57 F. from this balance must be deducted the security deposits paid to the Company MAC DONALD'S France, namely: - SEBOL: 100,000 F - BetO: 100,000 F - LES PINS: 20,000 F TOTAL: 220,000 F (cf.: production) » Moreover, the rents of the Companies SEBOL and LES PINS for the month of January 1998 were unduly deducted and not returned by the Company MAC DONALD'S France, whereas, moreover, the Court of Appeal awarded this Company occupation indemnities for the period from 1 January 1998 to 9 June 1998. The month of January is therefore counted twice. The following is therefore owed: - to the Company SEBOL: 180,900 F, - to the Company LES PINS: 120,600 F, - that is a total of: 301,5000 F (cf.: production: bank statement) The real balance therefore amounts to 2,759,787.57 F. Security deposit paid: - of 120,000 F, Rents wrongly collected: - 301,500 F, Net balance: 2,238,287.57 F. Moreover, from this sum the burden of three quarters of the costs must be deducted and not one quarter as the Company MAC DONALD'S FRANCE wrongly indicates. It thus transpires that out of the total amount of the orders, the Company MAC DONALD'S France has already received 75% of what is owed to it, this effort by the applicants already demonstrating, if need be, their willingness to comply with the judgment to the extent of their possibilities, the Company MAC DONALD'S France having led, as found by the Court of Appeal, the applicants to insolvency. Moreover, the applicant Companies, since 10 June 1998, no longer have any activity and therefore no longer have any cash, which makes it impossible for them to comply with the causes of the judgment. The applicants wish to specify, Mr First President, that the Company MAC DONALD'S France has, moreover, taken security, since it benefits from a judicial mortgage on the house of Monsieur COLLORAFI, the only asset he owns, as security for a claim of 4,150,000 F (cf.: production: mortgage statement). As regards Monsieur and Madame COLLORAFI, it is important to note, as emerges from their income tax return, that the applicant is not taxable, the couple having declared, for the applicant a salary and equivalent income of 90,136 F and for his wife a salary of 88,353 F, the couple having two tax shares. Monsieur COLLORAFI provides proof that he is, moreover, in debt, being debtor towards the C.R.C.A.M. of the ALPES MARTIMES, under a loan of 1,420,000 F, granted on 20 August 1993, with a view to financing the acquisition of the only real property of which he is owner and over which the Company MAC DONALD'S France benefits from a judicial mortgage registration up to 4,150,000 F, the bank having declared the loan forfeited, given the impossibility for the applicant and his wife to perform their commitments: a difficulty arising from the wrongful termination of the agreements by the Company MAC DONALD'S France (cf.: production: judgment of the Tribunal d'Instance of CANNES of 28 October 1999). Monsieur COLLORAFI, moreover, is the subject of third-party holder notices from the Public Treasury. Thus on 11 October 2000, he was notified of a third-party holder notice in respect of property tax for an amount of 14,140 F (cf.: production), on the same day a third-party holder notice of 3 51 F, not counting the third-party holder notices in respect of the S.C.I. COLLO (cf.: productions). The Public Treasury acknowledged the applicant's difficulties, as emerges from a letter of 20 November 2000, by which the TREASURY indicated to the applicant its agreement to a settlement of 2,700 F per month from 20 November 2000, until extinction of the debt (cf.: production). Monsieur COLLORAFI wishes to specify that he is guarantor of the commitments of the S.C.I. COLLO, which, as emerges from the aforementioned judgment of the Tribunal d'Instance of CANNES, is debtor towards the C.R.C.A.M. of the ALPES MARITIMES, under a loan of 1,048,000 F, granted on 21 August 1999. The Tribunal d'Instance of CANNES rejected the request for suspension sought by the applicant in respect of this loan on the ground that he was not the principal debtor. Finally, the applicant wishes to specify that the CREDIT DU NORD (letter of 16 May 2000, cf.: production) on 7 January 1999 invoked the early repayment clause of a credit of 3,275,000 F granted to the S.A.R.L. B et O, which was given formal notice to pay the sum of 2,623,755.89 F. The Bank indicated that, having become aware of the judgment under appeal, it maintained the terms of the formal notice and added: "Failing payment of the sum underlined above or a concrete proposal for repayment, and this within a very short time, we will be compelled to summon you" (cf.: production). The applicant, here again, is guarantor of the commitments of the S.A.R.L. B et O. That is to say, Mr First President, that not only has the Company MAC DONALD'S France received the major part of the sums that the applicants owe to it (nearly 75%), but also that this company is reassured as to payment of the balance since it likewise benefits from a judicial mortgage on the house of the applicant, applicants who are in the impossibility of complying with the causes of the judgment. In these circumstances, it would be particularly inequitable to grant the application for removal from the list, the consequences of which would be manifestly excessive having regard to the concrete situation of the applicants. FOR THESE REASONS and all others to be deduced or supplied if need be of its own motion, The applicants conclude that it may please you, Mr First President, to DISMISS the application for removal from the list of appeal no. X - 00 - 14 447 submitted by the Company MAC DONALD'S FRANCE on the basis of article 1009-1 of the New Code of Civil Procedure. S. C.P. A. BOUZIDI Advocate to the Conseil d'Etat and to the Court of Cassation 125, Boulevard Malesherbes 75017 PARIS PRODUCTIONS: letter from CREDIT DU NORD of 16 May 2000, slip for registration of the TREASURY's preferential claim (privilege): * in respect of the Company SEBOL: 240,086 F, * in respect of the S.A.R.L. LES PINS: 108,460 F, judgment of the Tribunal d'Instance of CANNES of 28 October letter granting extensions from the PUBLIC TREASURY of 20 November notification of third-party holder notice of 11 October 2000 on behalf of the S.C.I. COLLO, notification of third-party holder notice on behalf of mortgage statement, statement of accounts of the various companies in respect of rents unduly deducted by the company MAC DONALD'S France, lease-management agreement, letter from the Company MAC DONALD'S France of 30 April 1997 indicating a security deposit of 20,000 F for the S.a.r.l. LES lease-management agreement, summary table of the sums owed, income tax 1999, sale mandate for the applicant's house.