Cassation — supplementary deliberation

'01 20:49 FAX 0144090319 DELAPORTE&BRIAKD GoUZ S.C.P. (DELAPOHTE BRIARD 6, Rue Anatole de la Forge 75017 PARIS Rugmettr 3784 Hearing of 7 March 2001 COURT OF CASSATION /19.MAR. 2001 RECEPTION OFFICE COURT OF CASSATION FIRST PRESIDENCY SUPPLEMENTARY NOTE FOR DELIBERATION (art. 200s-1 new Code of Civil Procedure) FOR : The company MC DONALE S FRANCE AGAINST: 1/ Mr Bernard COLORAFI 2/ The SA SEBOL 3/ The SARL B & O 4: The SARL LES PINS SCP A BOUZIDI Appeal no. X 00-14.487 The company MC DONALI 'S wishes to supplement its latest observations. The applicants for appeal have disputed that the amount of the sums remaining owed to the company MC DONALD'S at 31 December 2000 amounts to the sum of 2,837,763.84 francs whereas, according to their own calculation, they would remain owing it only the sum of 2,238,287.57 francs. In so doing, Mr COLL(IRAFI and his various companies merely dispute the quantum of the awards as fixed by the Court of Appeal. They therefore cannot assert today that various sums would be deducted from their debt which in reality they never asked to be taken into consideration to reduce the claim of the company N.C DONALD'S against them. Moreover, the applicants for appeal based their argument on the fact that the company MC DONALD'S should be reassured as to the payment of the balance due to it since it benefited from a judicial mortgage on Mr COLLORAFI's house. It follows, however, from a letter from the notary in charge of the sale of that property that the company MC DONALD'S will in reality receive no sum from the sale of this house: not only, as has already been indicated, the company MC DONALD'S benefits only from a second-ranking mortgage, but moreover the notary's letter shows that there is a statutory mortgage in favour of the public treasury and that the tax authorities have served on him several third-party holder notices for the recovery of various tax claims against Mr COLLORAFI and his companies. But above all, the items relied on by the applicants for appeal bring out contradictions: the preliminary sales agreement they produced in support of their defence observations reveals not only that Mr COLLORAFI is only partially the owner of the house, together with his wife and a SCI called "COLLO" but that the sale price had been set at a sum of 3,200,000 francs. Yet it follows from the notary's letter produced by the company MC DONALD'S that the sale price of this property would have fallen to 1,866,666 francs. Given the slightest commencement of enforcement of the provisions of the judgment under appeal and the unclear explanations of the applicants for appeal on their real situation, appeal no. X 00-14.487 must be removed from the list of cases to be heard. Production: - Letter from Maître AMALVY, notary, dated 28 July 2000 Société Civile Professionnelle V. DELAPORTE - F.-H. BRIARD Avocat au Conseil d'Etar et à la Cour de cassation 19/03 01 20:48 FAX 0144090319 2Đ: 44 DELAPORTE&BRIAKU LEGAL DEPT 4EI 004 PAGE JEAN-PIERRE RUEL - PIERRE AMALVY 24 RUE CHARLES PIQUET ASSOCIATE NOTARIES 13520 MAUSSANE-LES-ALPILLES Office at Fontvieille on Tuesdays at 5 p.m. TELEPHONE 04.90.54.33.98 FAX 04.90.54.30.78 C.C.P. MARSEILLE 13 849 7B A Office closed on Saturdays NAU ISANE. lo 28 ullet 2000 HOCIETE MC DONALD'S KERVICE CONTENTIEUX Rue Gustave Biffel ''8280 GUYANCOURI Our ref: VTE COLLORAFI- SCI COLLO/PERRIN •PAMES Your ref: DOSSIER COLLORAFI 2.A.1 Dear Director, I have been instructed by Mr and Mrs COLLORAFI to proceed with the sale of lot no. 101 forming part of the CASTEL LUYSSIANE real-estate complex located at LE CANNET for the price of L.s 66.666 F. The mortgage records reveal in respect of the property various mortgage registrations: 1°) In first rank a contractual mortgage in favour of the CRCA to secure the principal sum of: 1. 72:0.000 F. against Mr and Mrs COLLORAFI, 2°) A provisional judicial registration in favour of your company to secure the sum of 4,150,000 F taken against Mr COLLORAFI alone. 3°) A statutory mortgage of the Public Treasury against Mr COLLORAFI of 117,585 F. Moreover, the tax authorities have served on me by Third-Party Holder Notice under the federal privilege of the Treasury against Mr COLLORAFI the recovery of various tax claims: Trésorerie LE CANNET: 3,940.00 F SEBOL S.A.: 180,700.00 F BET OSARL: 55,647.001 STE SODARA: 29632,00 SARL LES/PINS : 2230,00 F membre d'une associalion airéér, le roulement des Monoralres par chaquo ust 18/03 01 20:50 FAX U144U8U318 16/03/2001 20:44 DELAPORTE&BRIARD LEGAL DEPT PAGE 03 lécompose dela lapor la partie du prix toresat à Monsieur COLLORAFT sE PRICE.... ..... 1.866.666.00 E = 933.333,00 F The sums due to the Treasury detailed above. Half of the CREDIT AGRICOLE loan. Balance..... - 272,349.00 F ..- 710,000.00 F .- 49,016 F Consequently, regularising the sale requires: - Either the agreement of the subsequent-ranking creditors to regularise the sale recording a waiver of claims in respect of the sums secured by the mortgage charge. - Or a sale followed by the purging formalities. Failing a reply from you, we would therefore proceed with the sale of the property with the price being deposited with the Caisse des Dépôts et Consignations, then on request after land registration, we will offer the creditors the possibility of making a tenth-part higher bid within a period of 40 days from the summons. At the expiry of these periods, either the mortgage creditor makes a higher bid and the sale price and costs are returned to the purchasers, or the creditors do not come forward and the purchasers are definitively vested with title, it being for the sellers to bring about a judicial distribution procedure for the sharing of the price among the various creditors. I would therefore thank you to kindly state your position to me and let me know whether you agree amicably to the execution of the authentic deed by giving an undertaking to release the mortgage without receiving funds from the sale price (notwithstanding the fact that your mortgage ranking, given the liabilities, will not allow you to collect any part of the price). In order to define a timetable I would thank you to kindly let me know your position within a period of three weeks from receipt of this letter, failing which I shall consider that your company opposes an amicable regularisation and that it will be necessary to consider the sale with the purging formalities with a right of higher bid in your favour for you to be awarded the property. Yours faithfully, Dear Director, Me Pierre AMAI VITATRI des Piquet: T520 MAUSSARE