Obtaining a favourable court decision is sometimes only the first step in a long process. To obtain payment of a debt, often after an amicable collection attempt has failed, the creditor must rely on an enforceable title, a legal document that allows him to resort to forced execution. However, this document is not infallible. Formal defects, substantive irregularities or changes in the debtor's situation can render it ineffective or null and void. Challenging the validity of such a deed is a complex process that requires precise knowledge of the procedures and remedies available. Our law firm assists individuals and businesses with defend their rights against execution by analysing the validity of the acts that oppose them. The aim of this article is to summarise the key concepts, which are developed in greater detail in our specific publications.
The concept of enforceable title: basis and typology of valid instruments
To initiate a compulsory enforcement measure, such as a seizure on a bank account, a creditor must hold a specific legal document. The legal definition of an enforcement orderArticle L.111-3 of the Code of Civil Enforcement Procedures sets out the various forms of these instruments. Among the most common are court or administrative tribunal decisions (judgements, orders), notarised deeds bearing the executory clause, conciliation reports and certain deeds issued by bailiffs (now judicial commissioners). To be valid, the instrument must establish a claim that is certain in principle, liquid in amount (or at least quantifiable in euros) and due, i.e. payment of which has fallen due. Prior notification of the instrument to the debtor is also an essential condition for obtaining full enforceability.
Causes of invalidity and ineffectiveness of the enforcement order
The validity of an enforcement order may be challenged on a variety of grounds, traditionally distinguished between substantive irregularities and formal defects. This distinction is fundamental, as it determines the legal regime of the sanction and the conditions for obtaining the annulment of the procedure initiated following an unpaid debt.
Substantive and formal irregularities affecting the validity of the title
Substantive irregularities are the most serious. They affect the very substance of the right being enforced, such as a lack of legal capacity on the part of one of the parties or the absence of a debt that is certain, liquid and due. In such cases, the enforcement order may be declared null and void without the debtor having to prove any prejudice. Formal defects, on the other hand, relate to breaches of procedural rules, such as the omission of a compulsory statement in a summons to pay or a writ of seizure, or an error in the service of documents. For a defect in form to result in nullity, the debtor must demonstrate that the irregularity has caused him harm, i.e. that it has prejudiced his interests or his rights of defence.
The non-applicability of the statute of limitations to unfair terms: a major means of contestation
One of the most powerful areas of challenge in consumer law is based on no statute of limitations on unfair terms. It is settled case law, stemming from European Union law and regularly confirmed by the Cour de cassation, that the national court must at all times examine the potentially unfair nature of the terms of a contract concluded with a consumer. This fundamental protection allows the enforcement court to review the validity of the contract serving as the basis for the security, even if a previous court decision that has the force of res judicata has already been handed down. The court is obliged to note such a clause of its own motion, which can lead to enforcement being paralysed.
The enforcement procedure: role of the players and disputes
There are three main parties involved in the seizure of assets: the seizing creditor, who initiates the proceedings, the seized debtor, against whom the measure is directed, and the seized third party, who holds the funds (a bank, a tenant, etc.). The procedure begins with the service of a seizure notice on the third party, ordering it to stop releasing the funds into the hands of the debtor. This document must then be notified to the debtor, opening up a period for any disputes to be lodged by way of a writ of summons.
Obligations of the garnishee and penalties for non-compliance
The success of a seizure depends largely on the cooperation of the third party. It is for this reason that the garnishee's obligation to declare the extent of his commitments to the debtor is governed by strict sanctions. They must immediately provide the court-appointed receiver with precise information about the sums they hold. Failure to comply with this obligation, such as making a late or inaccurate declaration or refusing to make a declaration without a legitimate reason, may render the debtor liable. Depending on the seriousness of the offence, they may be ordered to pay damages, or even the full cost of the seizure, which can amount to several thousand euros, plus additional costs.
Time limits and prescription of claims: a crucial issue for enforceable titles
The period of validity of an enforcement order is intrinsically linked to time limits. The limitation period for recovery action of an unpaid claim can destroy the creditor's rights if he fails to act within the time allowed by law. The time limit for enforcing a court order is in principle ten years, as stated in a ruling published in February 2020. For other documents, such as notarial deeds, the period depends on the nature of the claim. These time limits may be interrupted (by an act of enforcement, for example) or suspended, thereby postponing their expiry.
Impact of insolvency proceedings on the validity and limitation period of seizures and allocations
The opening of collective proceedings (safeguard, reorganisation, judicial liquidation) or over-indebtedness proceedings for an individual has a radical effect. The principle is the stay and prohibition of enforcement proceedings individuals. In principle, a protective measure taken before the opening judgment remains valid, but payment is suspended. Any seizure initiated after the opening judgment handed down by the Commercial Court is, save in exceptional circumstances, null and void. The purpose of this rule is to ensure that creditors are treated equally and to enable the company to be reorganised or wound up as a group.
Distinction between successively enforceable claims and successive claims: management and procedural impact
The nature of the claim seized has important procedural implications. A claim for successive performance is a single claim for which payment is staggered over time (rent, for example). A single levy of execution can cover all future instalments. Conversely, successive claims are separate debts arising from different contracts. In theory, each new debt would require a new writ of attachment. This distinction, which is sometimes mentioned in an official report, is crucial in assessing the effectiveness of an attachment over the long term.
The role and powers of the Enforcement Judge in the event of disputes
Any dispute relating to the validity of a writ of execution or the legality of a compulsory enforcement measure falls within the jurisdiction of the exclusive jurisdiction and public policy of the enforcement judge (JEX)who sits on the judicial tribunal. This magistrate is the guarantor of a fair balance between the rights of the creditor and the protection of the debtor. Although he cannot amend or cancel the debt instrument itself (except for non-judicial instruments such as notarial deeds or an order to pay that is not contested within the time limit), he is competent to interpret its meaning, verify its enforceability and rule on any difficulties that arise during the proceedings.
Disputes and incidental claims: forms, time limits and penalties
An attachment for payment must be contested by writ of summons before the JEX within one month of notification of the attachment. The debtor's bailiff must also report this act to the court commissioner who carried out the attachment on the same day. Failure to comply with these strict formalities will result in the dispute being declared inadmissible. Once the matter has been referred to the court, payment to the creditor is deferred until a decision is handed down. If the debtor does not act within the time limit, he will no longer be able to lodge an objection to the seizure but will retain an action for recovery of undue payment if the payment was unfounded. The same procedure applies to contesting a summons to pay prior to the sale of a property.
Appeals against decisions of the Enforcement Judge
The JEX's decisions may be appealed within a short period of fifteen days. An important feature is that the appeal has no suspensive effect: the decision handed down at first instance remains immediately enforceable. To halt enforcement, the appellant must make a separate application to the First President of the Court of Appeal for a stay of execution. This stay is granted only if the appellant demonstrates the existence of serious grounds for setting aside or altering the contested decision. At the end of the appeal procedure, an appeal to the Supreme Court is still possible, but this does not suspend enforcement.
The complexity of enforcement rules and the technical nature of the grounds for invalidating an enforcement order make legal assistance essential. If you are the subject of a seizure order, our law firm is at your disposal to analyse the validity of the deeds and the grounds for invalidity. help you defend your rights.
Frequently asked questions
What is an enforcement order?
An enforceable title is a legal document that allows a creditor to enforce payment of a debt. The most common examples are court rulings (a judgment handed down by a court, an order) and notarial deeds bearing the executory clause.
What can render an enforcement order invalid?
A deed may be invalid for reasons of substance (non-existent or time-barred debt, unpaid cheque with insufficient funds) or form (omission of compulsory particulars in the deed, irregular service). The presence of an unfair clause in the initial contract may also affect its effectiveness.
What is the role of the enforcement judge (jex)?
The JEX is the judge with jurisdiction over all difficulties relating to enforcement. The JEX cannot modify a judgement serving as a writ of execution, but it does review the enforceability of the judgement, interprets its scope and rules on all disputes concerning the legality of seizures.
Can an unfair term render a title ineffective?
Yes, the Enforcement Judge is obliged to determine of his own motion whether a clause in a consumer contract is unfair. If the enforcement order is based on such a clause, the judge can paralyse its effects and annul the seizure procedure.
What happens if a seizure is made against me while I am in receivership?
The opening of a safeguard, reorganisation or compulsory liquidation procedure results in the cessation and prohibition of most individual lawsuits. In principle, any seizure carried out after this judgment is null and void.
How long does it take to enforce a judgement?
The limitation period for enforcement of a writ of execution and recovery of the debt is ten years. This period may be interrupted by acts of enforcement, which start a new period.
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