Writ of summons — Grasse Regional Court (TGI)

LELOUP LAW FIRM -MCDONALD'S FRANCE /SEBOL, 5SO, LES PINS, COLLORAFI CIVIL PROFESSIONAL PARTNERSHIP Gérard TREILER - Preme GAMANI - Piaro JULIEN Nathalle : HALE *- LALEURE Hoision de Malce Associes 1. Rue du Chataignier 06400 CANNES - Tel. 04 92 99 38932001/SF SIRET 782 509 137 00025 WRIT OF SUMMONS BEFORE THE REGIONAL COURT (TRIBUNAL DE GRANDE INSTANCE) OF GRASSE COPY IN THE YEAR TWO THOUSAND AND ONE, ON the Twentieth of June TO: 1/ Monsieur Bernard COLLORAFI Born on 1 December 1945 at Sousse (Tunisia), of French nationality residing at 21 B Chemin de l'Estelle, 06110 LE CANNET married under the legal community property regime to Madame Olga COLLORAFI where being and speaking to 2/ Madame Olga COLLORAFI, née BIELANSKY born on 15 January 1949 at Rodez, of French nationality residing at 21 B Chemin de l'Estelle, 06110 LE CANNET married under the legal community property regime to Monsieur Bernard COLLORAFI where being and speaking to 3/ Monsieur Sébastien COLLORAFI born on 14 August 1973 at Chatellerault (8G), of French nationality residing at 21 B Chemin de l'Estelle, 06110 LE CANNET single where being and speaking to 4/ Monsieur Olivier COLLORAFI born on 13 May 1975 at Chatellerault (86), of French nationality residing at 21 B Chemin de l'Estelle, 06110 LE CANNET single where being and speaking to ..I... I, Nathalo NONCLERCO, Associate Bailiff within the Sodiútó Crile Protesionnele Górard TREIBER, Roger SAVANI, Piore JULIEN, Nathalio NONCLERGO el Momo LALEURE, Buaire dun crico of Bailiff at the Regional Court (Tribunal de Grande Instance) of GRASSE, at the Residence of CANNES, residing there at 1, rue du Chataignier, undersigned. I HEREBY INFORM YOU THAT PROCEEDINGS ARE BROUGHT AGAINST YOU BEFORE THE REGIONAL COURT (TRIBUNAL DE GRANDE INSTANCE) OF GRASSE, Cité Judiciaire, 37 avenue P. Sémard, 06335 GRASSE BY: The Company MCDONALD'S FRANCE Public limited company (Société Anonyme) registered in the Trade and Companies Register of Versailles under number B 722 003 936 whose registered office is at 1 rue Gustave Eiffel 78045 GUYANCOURT CEDEX acting through its serving President Having as postulating lawyer Maitre Robert VERJUS, lawyer at the Grasse Bar, 57 avenue de la Gare, BP 68, 06801 CAGNES SUR MER CEDEX and as pleading lawyers Mr the Bâtonnier Jean-Marie LELOUP. Maitre Michèle LELOUP. Mr the Bâtonnier Philippe MISSEREY, Lawyers Partners of LELOUP LAW FIRM, 61 rue Renaucot 86000 POMERS, Tel 05-49-41-30-93, Fax 05-49- VERY IMPORTANT Within FIFTEEN DAYS of the date indicated at the head of this document, you are required, by law, to instruct a lawyer at the GRASSE Bar to represent you before the Court. If you do not do so, you run the risk of a judgment being delivered against you, on the sole basis of the information supplied by your opponent CIVIL PROFESSIONAL PARTNERSHIP Gérerd TRE SER - Roger SAVAN - Pierro JULIEN Mathialle 1e - J0.6me LALEURE Hussions de lice Associds 1, Rue du Chalaigniec.../ 00400 CANNES - TH. 01 92 99 58 38 SIRET 702 509 137 00025 GROUNDS OF THE PROCEEDINGS Reminder of the prior procedure between McDONALD's on the one hand, and Mr COLLORAFI and the companies SEBOL, B&O and LES PINS of which he is the manager: I- Under a judgment of the Paris Court of Appeal of 8 March 2000, duly served on Monsieur COLLORAFI, the claimant is creditor of 1°r December 1945 in Sousse, married under the legal community property regime to Madame Olga BIELANSKY, residing with her at 21 b Chemin de l'Estelle 06110 LE CANNET (document 1). This judgment indeed: - ordered Monsieur COLLORAFI, jointly and severally with the company SEBOL, to pay to the company MCDONALD'S FRANCE the sums of: * 1,86T,247.84 francs as unpaid fees (royalties) prior to 2 January 1998 with interest at the legal rate: from 1 August 1997 on 1,266,300, from 1 December 1997 on 361,800, from 1 January 1998 on 239,147.84 francs, • 1,272,000 francs as fees (royalties) from 2 January 1998 to 9 June 1998 on the basis of 8,000 francs per day calculated on the 1997 turnover, - ordered Monsieur COLLORAFI, jointly and severally with the company B et O, to pay to the company MCDONALD'S FRANCE the sums of: • 1,533,548.87 francs as unpaid fees (royalties) at 2 January 1998 with late-payment interest at the base bank rate plus three points per instalment, • 1,113,000 francs as fees (royalties) from 2 January 1998 to 9 June 1998 on the basis of 7,000 francs per day calculated on the 1997 turnover, CIVIL PROFESSIONAL PARTNERSHIP Nelhalle H Ona LALEURE Hussers de Justico Masocies 1, Rce du Chataignier 0G400 CAMNES - Tel. 01 92 99 5088 SIRET 782 509 137 00025 - ordered Monsieur COLLORAFI, jointly and severally with the company LES PINS, to pay to the company MCDONALD'S FRANCE the sums of: • 504,474.42 francs as unpaid fees (royalties) prior to 2 January 1998 with late-payment interest at the base bank rate plus three points per instalment, • 1,272,000 francs as fees (royalties) from 2 January 1998 to 9 June 1998 on the basis of 8,000 francs per day calculated on the 1997 turnover. This judgment held that the interest due for more than a year at 16 March 1998 and on each anniversary date thereof shall itself bear interest, for the benefit of the company MODONALD'S FRANCE. II - On the counterclaim of Monsieur COLLORAFI and the companies SEBOL, B et O and LES PINS, the judgment of 8 March 2000: - On the tangible fixed assets: Ordered the company MCDONALD'S FRANCE to pay to the companies SEBOL, B & O, LES PINS and Monsieur COLLORAFI the sum of 4,528,333 francs under this head with interest at the legal rate from 13 December 1999. - On the personal loss of Monsieur COLLORAFI: Ordered the company MCDONALD'S FRANCE to pay him the sum of 100,000 francs as damages in compensation for his moral loss. - On the loss of the companies SEBOL, B & Q, LES PINS: Ordered the company MCDONALD'S FRANCE to pay to Monsieur Bernard COLLORAFI the sum of 240,330 francs as damages in compensation for his loss of the chance of having this salary income during this period. CIVIL PROFESSIONAL PARTNERSHIP Gerand TREnER. r Hais: 308-11000 Associos 1, Ree du Chataignier D6400 CANINES - Tel. 04 92 99 50 88 SIRET 782 509 137 00025 The enforcement of the judgment of 8 March 2000 to date: 1- After set-off of the reciprocal orders, and deduction of the sums received in the context of attachment-by-garnishment orders carried out at the request of the company MCDONALD'S against the 3 companies, there remained due, at the date of 31 December 2000, to the claimant by Monsieur COLLORAFI a sum of 2,837,763.84 FRF in principal and interest (document 4). At the date of 30 April 2001, the statement of the sums owed by Monsieur COLLORAFI amounts to 2,928,971.73 FRF in principal and interest and subject to procedural and enforcement costs (document 4bis). II - On 15 May 2001, the SCP ZONINO - ERCALI, bailiff at St-Laurent du Var, transmitted to the counsel of the company McDONALD's a sum of 65,700.75 FRF representing the available balance (after deduction of the costs and fees of this bailiff) of a sum seized against Monsieur Bernard COLLORAFI of 70,680.49 FRF in the context of an attachment-by-garnishment of a bank account of Monsieur and Madame Bernard COLLORAFI. The claimant is therefore still creditor of the COLLORAFI family members for considerable sums. The prospects for future enforcement of the judgment of 8 March 2000: I- The claimant company has registered a mortgage on the building where Monsieur and Madame COLLORAFI are domiciled, of which they are owners and which constitutes a community property asset (documents 5 and 6). This is a building located at CANNET, Chemin de l'Estelle, registered in the land register section BE no. 756 lots nos. 101 and section BE no. 579. CIVIL PROFESSIONAL PARTNERSHIP •P LALEURE Missiors Go-rete Assoods 1, Rue du Chanigner DG400 CANNES - Tel. C4 92 99 58 88 SHET 762 009 137 00025 It should be specified here that this building, acquired in 1993 thanks to a loan from Crédit Agricole of 1,420,000 FRF, is encumbered by a mortgage taken by this bank on 24 December 1993 for a principal amount of 1,420,000 FRF plus 284,000 FRF of accessories, valid until 28 August 2010. It is also encumbered by a registration taken by the Public Treasury on 17 May 1999, for 117,585 FRF, valid until 17 May 2009. II - The claimant learned that Monsieur and Madame COLLORAFI have, by deed of 30 March 2001, of Maitre AMALVY, associate notary of the SCP RUEL - AMALVY, notaries at Maussane-les-Alpilles, signed a promise of sale of this building to Monsieur FREGEAU, for an overall price of 2,000,000 FRF (document 7). III - On this occasion, the company McDONALD's learned the amount of the sums owed by Monsieur and Madame COLLORAFI to the mortgage creditors ranking ahead of the claimant: 1°) the CREDIT AGRICOLE is still creditor of 1,200,690.84 FRF (cf. letter Crédit Agricole Provence Côte d'Azur of 9 May 2001 - document 10), 2°) the claim of the TRESOR PUBLIC, namely 117,585 FRF, has not been paid (document 11: letter Recettes des Impots of 21 May 2001). The claimant also learned that the sale which, under the terms of the promise of 30 March, was to be completed on 7 June 2001 at the latest did not take place, Monsieur and Madame COLLORAFI having refused to sell. It follows from this situation that if the claimant pursues the forced sale of the building belonging to Monsieur and Madame COLLORAFI, and supposing that the price of 2,000,000 FRF is reached in this context, it will receive at best a sum of the order of 600,0D0 FRF, a small part of its claim. IV - The claimant also learned, as emerges from the deed of 30 March 2001 referred to above, that lot 101, on which it registered its mortgage, represents only part of the building in which Monsieur and Madame COLLORAFI live, and that the rest of this building constitutes lot no. 02 belonging to an SC COLLO also now learns of the existence. , contra societe sonercLe FRANCE GAre TREMER « Rare SAVANI - Pleme AULIEN NaGane NOWDLE 3.00- 06:2ie LYLEURE Huissiers co date lesdeles 1. Rue du Chataignier 06400 CANNES - Tel. 04 92 99 56 88 SIRET 702 509 137 00025 It emerges from the articles of association, signed on 10 June 1993, of this SCI COLLO (document 8) that it was constituted by: - Monsieur COLLORAFI and Madame COLLORAFI née BIENLANSKY, debtors of the company MCDONALD'S FRANCE, - and their two sons, Sébastien, born on 14 August 1973, and Olivier, born on 13 May 1975, both residing with their parents. Article 6 of the articles of association specifies that the partners each make a contribution to the company of 300,000 FRF, the total of these contributions forming the share capital of 1,200,000 FRF. Under article 7 of these articles of association, the share capital is divided into 12,000 shares of 100 FRF each, allocated to the partners in the following proportions: • to Monsieur Bernard COLLORAFI: up to Three thousand shares numbered 1 to 3,000 . 3,000 shares • to Madame Olga COLLORAFI: up to Three thousand shares numbered 3,001 to 6,000 3,000 shares • to Monsieur Sébastien COLLORAFI: up to Three thousand shares numbered 6,001 to 9,000. 3,000 shares • to Monsieur Olivier COLLORAFI: up to Three thousand shares numbered 9,001 to 12,000 TOTAL: shares 3,000 shares 12,000 shares The purpose of this SCI was the acquisition of premises built on a plot of land located at CANNET, Chemin de l'Estelle, that is to say the part of the building inhabited by Monsieur and Madame COLLORAFI and constituting co-ownership lot no. 102. CIVIL PROFESSIONAL PARTNERSHIP Gérard TREIZER-Goge SAURAI - Plure JULIEN Nathalie LOPEL: Huissins do fia ssocios 1, Rue du Chats enier 06400 CANNES - Tel. 04 9299 58 S9 GIRET 702 509 137 00085 The SCI COLLO did indeed acquire this real property, by deed of 21 August 1993 and corrective deed of 20 October 1993 signed at the office of Maitre BONJEAN, notary at Grenoble, for a price of 1,243,334 FRF. V - Under the promise of sale of 30 March 2001 mentioned above (§ IV), the SCI COLLO promised to sell to the same Monsieur FREGEAU lot 102 of which it is the owner for a price of 1,500,000 FRF. It is specified in the said promise that lot no. 102 is encumbered by a mortgage registration in favour of Crédit Agricole des Alpes Maritimes in an amount of 1,048,000 FRF in principal plus 209,600 FRF in accessories, registration taken on 24 December 1993, and having effect until 28 August 2007. VI - On this occasion, the claimant learned the amount of the sums remaining due at 9 May 2001 to Crédit Agricole, namely 828,373 FRF (cf. letter Crédit Agricole Provence Côte d'Azur of 9 May 2001 - document 12). It also learned that, as for lot 101, the planned sale had not been completed and would not be. VII - The claimant, by virtue of the judgment of the Paris Court of 8 March 2000, carried out on 22 May 2001 a seizure of the shares of Monsieur and Madame Bernard COLLORAFI in the SCI COLLO (document 13). It already appears that, given the substantial mortgage liabilities of the SCI COLLO, the forced realisation of the shares belonging to Monsieur and Madame Bernard COLLORAFI, and constituting half of the share capital, will once again repay only very partially the claim of McDONALD's. The protective seizure of the shares of the SCI COLLO held by the COLLORAFI children (Sébastien and Olivier) nos. 6001 to 9000 and 9001 to 12000: 1 - That is why the claimant submitted to the Enforcement Judge of the Regional Court (Tribunal de Grande Instance) of Grasse an application seeking authorisation to seize protectively, as security for its claim, the 6,000 shares held by the young Sébastien and Olivier COLLORAFI. CIVIL PROFESSIONAL PARTNERSHIP 14 Cma LALEURE J30 AssocIos 1, Rue du Chanigner 06400 CANNES - TU. 04 92 09 58 03 SINE CR2 S00 10 Co120 This protective seizure was carried out on 22 May 2001, notified to Messieurs Sébastien and Olivier COLLORAFI on 23 May and to Monsieur and Madame Bernard COLLORAFI on 30 May 2001 (documents 14, 15 and 16). The claimant commences by this writ the proceedings on the merits following this protective seizure. The claim of the company McDONALD's: According to the articles of association, the 6,000 shares registered in the names of Messieurs Sebastien and Olivier COLLORAFI represent a capital contribution of 600,000 FRF, that is 300,000 FRF each. However, since these were young men aged at the time of the constitution of the SCI COLLO 18 and 20 years and living with their parents, there is reason to think that they did not personally make any contribution, and that all of the contributions were made by their parents, Monsieur and Madame COLLORAFI, both at the constitution of the company and during its existence. Messieurs Sébastien and Olivier COLLORAFI are fictitious partners of the SCI COLLO constituted by Monsieur and Madame Bernard COLLORAFI and are merely nominees of their parents. In accordance with article 1843-1 of the Civil Code, "the rights of each partner in the share capital are proportional to his contributions at the constitution of the company or during its existence". In the absence of Messieurs Sébastien and Olivier COLLORAFI establishing their contributions to the SCI, it will be for the Court to rule that they are not really partners of the SCI and to say that the SCI COLLO in reality has only two partners, Monsieur Bernard COLLORAFI and Madame née BIELANSKY. CIVIL PROFESSIONAL PARTNERSHIP Gers TAROER -R00035.60 - Pieme JOUER MINERCHE ICo tALEURE Haissiers de Joatie Associes 1, Rue du Chalignier 06100 CANNES - TL. 04 92 99 58 88 SIRET 732 509 137 00025 It follows that Monsieur and Madame Berard COLLORAFI, married under the legal community property regime, and debtors of the company McDONALD's, are the true and sole owners, not only of shares nos. 1 to 6000 of the SCI COLLO, but also of shares nos. 6001 to 9000 fictitiously held by Monsieur Sébastien COLLORAFI and nos. 9001 to 12000 fictitiously held by Monsieur Olivier COLLORAFI. The Court will say that shares nos. 1 to 12000 of the SCI COLLO constitute the security for the claim of the company McDONALD's and that these shares were rightly seized. Indeed, the claimant is entitled to pursue payment of its claim not only against the shares belonging to Monsieur Bernard COLLORAFI, but also against those belonging to his spouse in community property, Madame Olga BIELANSKI. Monsieur and Madame COLLORAFI were married on 11 September 1971. The SCI COLLO was constituted in 1993. Under article 1402 of the Civil Code: • Any property, movable or immovable, is deemed an acquisition of the community unless it is proved that it is the separate property of one of the spouses by application of a provision of law." and article 1413 of the Civil Code provides that: "Payment of the debts for which each spouse is liable, for whatever reason, during the community, may always be pursued against the community property, unless there has been fraud by the debtor spouse and bad faith by the creditor, and subject to the compensation owed to the community where applicable." Provisional enforcement will be ordered. FOR THESE REASONS Having regard to articles 1321, 1402 and 1413 of the Civil Code, Declare and rule that Messieurs Sébastien and Olivier COLLORAFI are fictitious partners of the SCI COLLO. CIVIL PROFESSIONAL PARTNERSHIP !... Géred TRISEr - Rorer SAVAHI - PlaTe JUIEN Rabbie n F Ame LALEURE Hassions do Jerico /Associés 1, Rue du Chatagner 06400 CANMES - TeL 04 92 99 58 B8 SIRET 702 509 137 00025 II. Declare and rule that Monsieur Bernard COLLORAFI and his spouse in community property, Madame Olga BIELANSKI, are the only two partners of the SCI COLLO. III. Declare and rule that shares nos. 1 to 12000 of the SCI COLLO belong to Monsieur and Madame Bernard COLLORAFI and are the security for the claim of the company McDONALD's, as it emerges from the judgment of 8 March 2000 of the Court of Appeal of Paris. IV. Declare good and valid the protective seizure of shares nos. 6001 to 12000 carried out on 22 May 2001 by virtue of the order of 10 May 2001 of the Enforcement Judge of the Regional Court (Tribunal de Grande Instance) of Grasse. V. Declare and rule that this protective seizure will be converted into a seizure-and-sale in accordance with the provisions of articles 247 et seq. of the decree of 31 July 1992. VI. Order provisional enforcement of the judgment to be made. VII. Order, jointly and severally, Monsieur and Madame COLLORAFI and Messieurs Sebastien and Olivier COLLORAFI to pay 20,000 FRF to the company McDONALD's under article 700 of the N.C.P.C. VIII. Order them, jointly and severally, to pay the costs with distraction for the benefit of Maitre VERJUS, lawyer. WITHOUT PREJUDICE Documents produced: 1. Judgment of the Paris Court of Appeal of 8 March 2000 2. Service of the judgment on Monsieur Bemard COLLORAFI 3. Marriage certificate of Monsieur Bernard COLLORAFI and Madame Olga BIELANSKY Statement of the sums owed to the company MCDONALD'S FRANCE by virtue of the judgment of 8 March 2000 4bis Update of the statement at 30 April 2001 5. Registration slip of the final mortgage of 2 May 2000 on the rights of Monsieur Bernard COLLORAFI over lot 101, retroactively replacing the provisional registration taken on 16 February 1998 Registration slip of the judicial mortgage on the rights of Madame COLLORAFI- BIELANSKY over lot 101 and acknowledgement of receipt of 2 April 2001 from the Land Registry (Conservation des Hypothèques) 7. Promise of sale of 30 March 2001 by deed of Maitre AMALVY, notary at Maussane-les- Alpines 8. Articles of association of the SCI COLLO CIVIL PROFESSIONAL PARTNERSHIP Garard TREKER - Emmer SAVAIS - Plore CULIEN Natalio MONOLE - 316ma LALEURE Huissiers de Lestre Assecids 1, Rue du Chalalenier D6400 CANNES - Tel. 04 92 99 58 88 SKET 782 509 137 00025 9. Kbis extract of the SCI COLLO 10. Letter CREDIT AGRICOLE Provence Côte d'Azur of 9 May 2001 on the mortgage on the building of Monsieur and Madame COLLORAFI 11. Letter RECETTES DES IMPOTS of Juan-les-Pins of 21 May 2001 12. Letter CREDIT AGRICOLE Provence Côte d'Azur of 9 May 2001 on the mortgage on the building of the SCI COLLO 13, Letter CREDIT AGRICOLE of 11 May 2001 to the notarial office of Maussane-les-Alpilles 14. Letter from Maitre AMALVY to Maitre DELAPASSE of 15 May 2001 15. Letter from Maître DELAPASSE to McDONALD's of 15 May 2001 CIVIL PROFESSIONAL PARTNERSHIP Gürard TREMER - Enger SAVANT-Plene JULIEN Nathalle re - Haa LALEURE Fussiers co Austice Associds 1. Rue du Chataigner 06400 CANNES - TeL 04 92 99 58 88 GIRET 782 500 137 00035