The seizure of a bank account is not an instant event, but the starting point for a complex process. Contrary to popular belief, the balance available on the day of the attachment is only provisional. The law imposes a period of technical adjustment, designed to clear transactions entered into prior to the measure but not yet recorded in the account. This phase, which is often overlooked, is nonetheless decisive in calculating the amount that will be definitively seized. Before exploring the mechanisms of this settlement, it is useful to recall how attachment works and its general implications.
Understand the general framework and the regularisation period for a bank attachment order
Attachment of a bank account is a compulsory execution procedure governed by strict rules, particularly as regards the unavailability of funds and the time allowed to clarify the accounting situation.
Fundamental principles of attachment of deposit accounts
Attachment allows a creditor with a writ of execution to seize sums of money owed to the debtor by a third party. In the case of a bank account, the garnishee is the financial institution. The fundamental principles of seizure of deposit accounts imply a surprise effect, making the funds unavailable as soon as the court-appointed representative intervenes with the bank. This measure may apply to all types of deposit accounts in which claims for sums of money are registered, whether current accounts, term accounts or savings accounts, opened with any institution authorised by law to maintain such accounts.
The period of unavailability of funds: duration, scope and exceptions
All of the debtor's accounts become unavailable as soon as the court commissioner serves the writ of attachment. However, this total unavailability is temporary. Article L. 162-1 of the Code of Civil Enforcement Procedures (CPCE) establishes a period of fifteen working days following the seizure; this fifteen-day period is crucial. During this period, the balance of the account on the day of the seizure is adjusted according to the transactions in progress. The aim is to draw up an accurate accounting picture, reflecting commitments made before the entry but whose impact was not yet visible. There is one notable exception: for the reversal of discounted bills of exchange that have not been paid, this period is extended to one month.
Detailed analysis of bank transactions affecting the seizable balance
The amount declared by the bank at the time of the seizure is only a snapshot at a given moment. It will change, both upwards and downwards, depending on transactions that originated prior to the execution measure.
Credit flows on the account entered are taken into account (cheques, bills of exchange, transfers)
Certain transactions crediting the account are taken into account to increase the basis for seizure, even if they are actually recorded later. The CPCE specifically refers to cheques or bills of exchange issued before the seizure but not yet credited. A particular difficulty concerns transfers. Case law has had to clarify the fate of transfer orders issued before the seizure, but for which the funds are not credited to the debtor's account until afterwards. The Court of Cassation (Cass.) considers that the beneficiary's claim arises as soon as the transfer order is issued, even though it has not yet been entered in the account (Cass. 2e civ., 28 May 2003, Bull. civ. II, no. 166). As a result, these sums are included in the amount that can be seized. This treatment creates a legal distortion in relation to payments by cheque or card, for which the date used is that of collection or effective credit to the beneficiary, and not that of issue.
Integration of account debit transactions (unpaid cheques, withdrawals, card payments)
Conversely, certain debit transactions, although they appear after entry, reduce the amount available. These include cheques handed in for collection that are returned unpaid during the adjustment period. There are also cash withdrawals from cash dispensers and bankcard payments. For the latter, the condition is twofold: the transaction must have been carried out before the seizure and the beneficiary must have been credited before the seizure. The precise time of the seizure, which must appear on the court officer's deed, thus becomes a central factor in determining whether a withdrawal or card payment transaction should be charged to the balance.
The specific regime for reversing trade bills and its impact
The treatment of discounted commercial paper benefits from a special regime that significantly extends the regularisation period and modifies the calculation of the amount that can be seized.
Mechanism and derogation period for reversal of effects
Reversal is a procedure whereby a bank that has discounted a bill of exchange or promissory note and credited its customer before the due date debits the customer's account if the bill is returned unpaid. Art. L. 162-1 of the CPCE gives banks an exceptional period of one month, rather than fifteen working days, to make this reversal. This provision enables the financial institution to protect itself against the risk of unpaid bills which may fall due after the seizure. The amount of the account seized may therefore be reduced by a substantial sum well after the usual adjustment period, which has a direct impact on the final amount awarded to the seizing creditor.
Determining the final seizable balance: rules for allocation and calculation
Once the adjustment period is over, an adjusted amount is obtained. The law lays down a precise order for settling transactions and calculating the amount that will actually be paid to the creditor. While this article focuses on the settlement of one-off transactions for a balance at a point in time, specific rules apply for successively enforceable claimssuch as rents or annuities.
The order in which debit and credit transactions are posted to the provisional balance
Article L. 162-1 of the CPCE establishes a rule for setting off debits that protects the creditor. If the cumulative result of adjustment transactions (credits minus debits) is negative, this deficit must first be charged against the fraction of the amount that was not covered by the attachment. In practical terms, if the amount in the account on the day of the attachment was greater than the amount claimed by the creditor, the adjustment deficit first reduces this surplus. Only if this surplus is insufficient to absorb the deficit will the amount allocated to the creditor be reduced. This method ensures that the creditor's share is allocated as a last resort, after the funds that were not included in the initial basis for seizure have been exhausted.
Obligations of the bank (garnishee) and the risk of penalties in the event of breach
As the garnishee, the bank plays a central role and is subject to strict obligations of information and cooperation, failure to comply with which may result in liability. Once the amount subject to seizure has been definitively calculated after the regularisation period, the bank's obligations continue with the terms of payment by the garnishee.
The obligation to declare and communicate the statement of transactions (L. 162-1 CPCE)
As soon as the writ of attachment is served, the bank must declare the extent of its obligations to the debtor to the court commissioner "forthwith". This initial declaration must mention the nature of all the accounts opened in the debtor's name and the balance of each on the day of the seizure; this communication is increasingly done electronically. Banking secrecy cannot be invoked against the seizing creditor in this context. After the adjustment period, if the balance has been allocated, art. L. 162-1 of the CPCE requires the bank to provide a detailed statement of all transactions that have modified the accounts since the day of seizure. This information must be provided to the creditor no later than eight days after expiry of the reversal period.
Civil penalties and damages for default by the garnishee
Failure by the bank to comply with its obligation to provide information carries severe penalties. A late, inaccurate or incomplete declaration or failure to respond may result in the bank being ordered by the courts to pay the costs of the seizure, i.e. to settle the creditor's debt. The bank may also be ordered to pay damages to the creditor if its misconduct has caused it harm, for example by misleading it about the chances of recovery. The bank can only be exonerated by proving a "legitimate reason" for its default, a concept strictly assessed by the courts, which covers, for example, complex and proven technical difficulties in determining the balance.
Protection of unseizable sums and the specific features of group accounts
The law protects part of the debtor's assets in order to guarantee a minimum standard of living, and lays down specific rules when the seized account is held by several people.
Mechanisms for making unseizable sums available (RSA, pensions, salaries)
Certain debts, because of their maintenance nature, are declared unseizable by law (family allowances, RSA, invalidity pensions, etc.). When they are paid into a bank account, the fact that they cannot be seized is reflected in the balance of the account. What's more, the law introduces an automatic protection mechanism: the Unseizable Bank Balance (SBI). Regardless of the origin of the funds, a sum equivalent to the lump sum of the RSA for a single person, i.e. €635.71 in 2024, is automatically left at the disposal of the individual debtor. This sum must be made available immediately, without the debtor having to request it. This protection mechanism, known by the acronym SBI, is a fundamental guarantee. Failure to comply with this SBI mechanism may lead the debtor to challenge the seizure and raise the following issues the abusive nature of the measure and to request the release of the seizure.
Attachment to a joint or undivided account: proof and matrimonial property regimes
Seizure of a joint or undivided account is deemed to involve the entire credit balance. The joint and several nature of a joint account means that the creditor of one of the joint account holders can seize all of the funds. It is then up to the non-debtor co-holder to prove ownership (exclusive or partial) of the sums paid into the account in order to have them deducted from the basis for seizure. The burden of proof therefore lies with the non-debtor. The matrimonial regime of the co-holder spouses also has a direct impact, particularly in the case of community property, where joint assets may be seized for a debt contracted by only one spouse. This situation not only raises the issue of proving ownership of the funds, but also the need to give notice to the joint holders so that the measure can be enforced against them and duly reported.
Distortions between payment instruments and the banker's recourse in the event of seizure
Recent case law has highlighted the different legal treatment of different means of payment used to credit an account, creating complex situations for banks, which can find themselves caught between the rights of the seizing creditor and those of the sender of the transfer, at the heart of banking law.
Differentiated treatment of transfers compared with cheques and card payments during the regularisation period
As mentioned above, case law considers that a credit transfer claim arises as soon as the order is issued, which means that it can be seized even if the funds have not yet been credited to the account. This solution, which is favourable to the seizing creditor, may be turned against the bank. If the initial transfer order is cancelled or found to be fraudulent after the bank has paid the seizing creditor on the basis of these funds, the bank will find itself overdrawn. Unlike cheques, for which the provision is verified on presentation, a credit transfer creates a seizable claim even before the beneficiary's bank is certain of the validity and irrevocability of the underlying funds.
Possible remedies available to the bank in the event of a disputed charge or unjustified enrichment
When the bank has paid the seizing creditor with funds from a transfer that subsequently turns out to be invalid, it suffers a loss. In such a situation, the bank may consider bringing an action for "unjust enrichment" (formerly known as "unjust enrichment") against the seizing creditor. To succeed, the bank will have to show that the creditor has been enriched, that the bank has suffered a corresponding impoverishment, and that this enrichment has no legitimate cause. The complexity of this action lies in the fact that the creditor has received payment on the basis of an enforceable title and a valid attachment procedure. The success of such an action is therefore far from guaranteed and will depend heavily on the factual circumstances and the judge's assessment.
The complexity of the liquidation rules and the risk of sanctions for the garnishee show that the management of a seizure-attribution on a bank account requires the assistance of a lawyer specialising in enforcement procedures to secure the procedure and defend the rights of each party. For an in-depth analysis of your situation and personalised advice, contact our team of lawyers. Our expertise is recognised, including in the specialist legal press, and this guide is no substitute for tailor-made advice. For complete information, a link to a professional is safer than a simple browser search.
Sources
- Code of civil enforcement procedures
- Commercial code
- Monetary and Financial Code
- Civil Code
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