The management company of a securitisation fund (fonds commun de titrisation) does not have to produce a mandate in order to recover the claims transferred to the fund: it acts as the fund's legal representative. The debtor is informed by any means, including by judicial or extrajudicial instrument. Submissions stating that the management company is pursuing the payment proceedings are sufficient for that purpose. In the overseas collectivity concerned, this regime has applied since 24 May 2019.
Key takeaways
- The management company of a securitisation fund may, at any time, handle the recovery of the claims transferred to the fund, as legal representative of that fund.
- That company does not have to produce a recovery mandate, even where the assignment instrument designates another company as recovery agent.
- The debtor is informed of the recovery by any means, including by judicial or extrajudicial instrument; written submissions stating that the management company is pursuing the payment proceedings satisfy that requirement.
- The new statute governs the legal effects of an earlier assignment of claims: the date of the assignment instrument does not freeze the rules applicable to recovery.
- In the overseas territory concerned, Article L. 214-172 of the French Monetary and Financial Code, in the version resulting from Law No. 2019-486 of 22 May 2019, came into force on 24 May 2019. That entry into force follows from Article L. 752-6 of the French Monetary and Financial Code.
Who could bring proceedings against the guarantors after the assignment?
The management company of the assignee fund could pursue the payment proceedings brought by the bank, without producing a recovery mandate (Com., 15 April 2026, No. 25-11.594). Three shareholders of a company had given guarantees for various obligations of that company towards a bank. After the debtor was placed in compulsory liquidation (liquidation judiciaire), the bank filed its claims, then brought proceedings against the guarantors to enforce their undertakings. During the proceedings, the bank assigned its claims to a securitisation fund, represented by its management company, another company being responsible for recovery.
The management company then intervened voluntarily in the proceedings, by submissions dated 30 April 2019. The court of appeal (CA Papeete, 12 December 2024, No. 22/00126) held that intervention inadmissible. It held that the assignment remained governed by the law in force at its date, noted that the instrument designated another company as recovery agent, that this company had served formal notice (mise en demeure) on the guarantors, and that no document established a recovery mandate in favour of the management company.
The commercial chamber partly quashes this decision: the management company had no mandate to establish, and its written submissions had informed the guarantors that it was handling recovery (free translation).
the management company representing [the fund] did not have to establish a mandate in order to recover the claims that the bank had transferred to it, and its voluntary intervention submissions, which stated that it was pursuing the payment proceedings brought by the bank, had informed the guarantors that it was handling their recovery
Must a mandate be produced in order to recover a securitised claim?
No: the management company derives its standing (qualité pour agir) to recover from statute, not from a contractual mandate. The provisions relied on in the decision, in the version resulting from Law No. 2019-486 of 22 May 2019, allow the recovery of the transferred claims to be handled, at any time, directly by the management company as legal representative of the securitisation fund. A debtor against whom proceedings are brought may therefore no longer require the production of a recovery mandate in order to challenge the standing of the party claiming payment from it.
The requirement to inform the debtor remains, but it is flexible. The debtor is informed by any means, including by judicial or extrajudicial instrument. A written document addressed to the court and communicated to the opposing party, stating that the management company is taking over the payment proceedings brought by the assignor, amounts to such information. The designation of another party as recovery agent in the assignment instrument, or the sending of the formal notices by that party, does not deprive the management company of the ability to act itself.
Which law applies where the assignment predates the reform?
The new statute governs recovery, even where the assignment of claims predates its entry into force. The decision applies Article 2 of the French Civil Code: according to the reasoning adopted, the new statute governs the legal effects of legal situations arising before its entry into force and not definitively completed. The recovery of the transferred claims falls within those legal effects. Taking the date of the assignment instrument as the reference point for assessing the management company's standing is therefore an error of reasoning.
The solution has an explicit territorial dimension. The provision allowing direct recovery by the management company came into force on 24 May 2019 in the overseas territory concerned, pursuant to Article L. 752-6 of the French Monetary and Financial Code. The intervention submissions predated that date by a few weeks, but the court of appeal was ruling well afterwards: the rule in force at the time when it ruled on standing was the one to be applied.
The quashing remains partial and confined to two points: the finding that another company alone had received a recovery mandate, and the declaration that the voluntary intervention was inadmissible. The case returns to the Papeete court of appeal, differently composed, which will rule again on those points. The commercial chamber did not examine the other grounds of appeal, and decided neither the amount nor the extent of the guarantors' undertakings.
How to secure the recovery of a claim assigned to a fund
The security of recovery rests on two elements: the statutory standing of the fund's representative and the traceability of the information given to the debtor. An assignee acting through its management company is well advised to state expressly, in its written submissions, that it is pursuing the payment proceedings brought by the assignor and that it is handling recovery of the claim. According to the decision discussed here, that statement is sufficient to inform the debtor. Keeping evidence of the date of that information remains useful in the event of a later challenge.
A debtor or guarantor seeking to resist the assignee must shift the ground of the debate. The failure of the management company to produce a recovery mandate is no longer, in itself, an effective argument. Still open to discussion are the existence and extent of the assignment, the substance of the claim and the content of the guarantee undertaking. The applicable version of the provision is assessed at the time when the court rules, not at the date of the assignment instrument.
Points to check before bringing proceedings for payment
- Identify who is acting: the management company representing the securitisation fund, in that capacity, or the service provider actually handling recovery.
- Check the version of the provision applicable at the date on which the court rules, and not at the date of the assignment instrument.
- Include in the written submissions a statement that the fund's representative is pursuing the payment proceedings and is handling recovery.
- For the overseas territory concerned, take 24 May 2019 as the date of entry into force of the provisions relied on in the decision.
- On the debtor's side, focus the challenge on the reality of the assignment and on the extent of the undertaking, rather than on the absence of a mandate.
Frequently Asked Questions
Can a securitisation fund claim a debt from me without going through the original bank?
Yes. Where the bank has assigned its claim to a securitisation fund, the fund's management company may handle recovery directly, as legal representative of the fund, including before the courts. According to the decision of 15 April 2026, it does not have to produce a recovery mandate. It must, however, inform the debtor, by any means, that it is handling that recovery.
How is the debtor validly informed that the assignee fund is recovering the claim?
By any means, including by judicial or extrajudicial instrument. The decision of 15 April 2026 accepts that voluntary intervention submissions stating that the management company is pursuing the payment proceedings brought by the assignor bank sufficiently inform the debtor. No particular form is therefore required. The fact that another party previously sent recovery notices does not prevent that information from being valid.
Does a law that came into force after the assignment of the claim apply to recovery?
Yes, as regards the legal effects of a situation not definitively completed. The decision of 15 April 2026 recalls, on the basis of Article 2 of the French Civil Code, that a new statute governs the legal effects of legal situations arising before its entry into force and not definitively completed. Standing to recover is therefore assessed under the provision in force when the court rules, not at the date of the assignment instrument.
Can I challenge the standing of the company that bought my debt?
A challenge remains possible, but its scope is narrow. A party claiming payment must show that it holds the claim, or that it has standing to recover it. Disputing the existence and extent of the assignment, the substance of the claim or the content of your own undertaking remains relevant. Criticising the claimant for not producing a recovery mandate is, however, insufficient where its standing derives from statute.
Does my personal guarantee survive if the bank sells on the claim it secures?
Yes, in principle. The assignment of a claim transfers to the new creditor the accessory rights securing it, including the personal guarantee, without the guarantor having to consent. Guarantors retain the defences arising from their undertaking and from the secured debt: extent and duration of the guarantee, amount actually due, enforceability. The change of creditor does not aggravate the obligation entered into and creates no new undertaking.