Having your bank account seized is often a brutal and destabilising experience. From one day to the next, your funds are blocked, depriving you of access to your own money. While this procedure is legal, it does not allow for all excesses. Seizures can be abusive, either in principle or in the way they are carried out. The purpose of this article is to provide you with an overview of the situations in which a seizure of assets may be abusive, and the main steps and remedies available for contesting it. We will focus on the key concepts, and each point can be explored in greater depth using the additional resources provided.
Understanding attachment for payment: a compulsory enforcement procedure
Attachment is a civil enforcement procedure that enables a creditor, in possession of an enforceable title (such as a court order), to obtain payment of sums owed to him. To do this, the creditor applies directly to a third party who holds funds in the debtor's bank account. In most cases, this third party is a bank, and the measure takes the form of a seizure of a bank account.
The procedure involves three main parties: the seizing creditor, the seized debtor and the seized third party (the bank, for example). The act of seizure is served on the third party by a commissioner of justice (formerly a bailiff), which has the immediate effect of making the funds unavailable from the day of the seizure. The debtor is then informed of the seizure by means of a notice of seizure, which marks the starting point of the period for contesting the seizure.
When does an account seizure become abusive?
The law strictly regulates the conditions under which a seizure may be carried out. Abuse is not always easy to detect, and its assessment largely depends on the analysis of the enforcement judge (JEX). However, there are a number of situations in which abuse may be suspected.
The principle: the creditor has a choice of enforcement measures
It is important to note that, in principle, the creditor has the choice of measures to ensure recovery of its debt. Article L. 111-7 of the Code of Civil Enforcement Procedures confirms this: "The creditor has the choice of measures to ensure the performance or preservation of his claim.. However, this same article sets a fundamental limit: "The execution of these measures may not exceed what is necessary to obtain payment of the obligation.. The fundamental criterion is therefore proportionality: a seizure is not abusive by nature, but it becomes so if its execution exceeds what is strictly necessary.
Criteria for abuse: a case-by-case assessment
Case law, in particular that of the Cour de cassation and its Civil Division, has gradually defined several criteria for identifying abuse of seizure. The mere existence of harm to the debtor is not enough. For a seizure to be deemed abusive, it is generally necessary to demonstrate a fault on the part of the creditor, or even an intention to cause harm. For example, it has been deemed unfair for a creditor to pursue a seizure even though the writ of execution on which it was based had been cancelled by a court decision. In this case, the failure to release the seizure constitutes a manifest error. The enforcement judge then has the power, as provided for in article L. 121-2 of the same code, to order the release of the measure and order the creditor to pay damages.
Infringement of substantive rules: the example of sums that cannot be seized
A seizure is manifestly irregular and can be contested if it involves sums that the law protects. Not all the money in a bank account can be seized. The law provides for an unattachable bank balance (SBI), equivalent to the revenu de solidarité active (RSA) for a single person, which must be left available to the debtor. Your bank is obliged to inform you of this right. It must respect this imperative rule.
In addition, certain debts benefit from special protection because they are maintenance debts. These include, for example, a portion of wages (known as the seizable portion in the case of attachment of wages), family allowances, maintenance payments or certain annuities. If an attachment order is made against these sums in breach of these rules, it is illegal and must be contested in order to obtain its release, at least in part.
The most common grounds for dispute
In addition to being directly abusive, an attachment for payment, which differs from a seizure of property or an attachment for sale, can be contested on formal or substantive grounds that call into question its validity and render it irregular. Analysis of the documents provided by the court commissioner is a decisive step.
Absence of a liquid and due claim
To carry out a seizure, a creditor must hold a writ of execution that establishes a "liquid and payable" claim, as set out in article L. 111-2 of the Code of Civil Enforcement Procedure. A claim is liquid when its amount is clearly evaluated in money or when the deed contains all the elements required to do so. Sometimes, however, the writ of attachment is accompanied by an imprecise or opaque statement of account. If this document does not make it possible to verify the origin and calculation of the sum owed, it can be argued that the claim is not liquid and that the amount of the seizure is therefore unfounded. This situation justifies an application for the seizure to be lifted.
Incorrect interest statements: a common form of abuse
One of the most frequent examples of irregularity concerns the calculation of interest. The statement attached to the writ of attachment must make it possible to check the period over which interest has been calculated and the details of the charges. In the case of consumer credit, for example, the Civil Code imposes a two-year limitation period on interest. However, many debt collection agencies continue to charge interest over five years, which artificially inflates the amount of the debt, making it much higher than the actual sum owed. This practice, when carried out by a debt collection professional who cannot ignore the rule of law, may be deemed abusive by the courts. These manoeuvres, sometimes combined with questionable initial contracts, are solid defences. There are remedies for act against enforcement even after a final judgment has been given.
How do I take action and contest an attachment order?
When faced with a seizure that you believe to be abusive or irregular, it is imperative to act quickly. Although an amicable resolution is always preferable, it is rarely possible once the measure has been taken, and the procedure for contesting it is subject to strict rules that must be respected.
Referral to the enforcement judge (JEX): an essential step
The enforcement judge (JEX) in the debtor's place of residence, who sits in the court of first instance, has exclusive jurisdiction over any challenge to an attachment order. Any debtor wishing to contest the measure must bring the matter before the judge by writ of summons. Note that the time limit for taking action is very short: the seizure must be contested within one month of notification of the seizure. After this deadline, it becomes much more difficult to challenge the procedure. It is therefore essential to take action as soon as you receive the document from the court commissioner, without waiting for a second opinion.
The importance of legal advice
Enforcement procedures are technical and complex. Analysing a writ of seizure, a writ of execution and a statement of claim to identify flaws requires real legal expertise. A lawyer specialising in enforcement law will be able to examine all the documents, identify the substantive and formal arguments on behalf of his client, and draw up the summons to appear before the enforcement judge to enable you to assert your rights, or even obtain the release of an unjustified attachment. The intervention of this solicitor is often a prerequisite for successfully contesting the seizure and obtaining a reduction in the amount of the seizure, depending on the client's needs.
When faced with a measure that directly affects your financial situation, it is essential not to remain passive to prevent the situation from getting worse. If you think you are the victim of an abusive seizure, professional assistance is your best bet. Our firm can help you to contesting an abusive seizure of assetsWe can help you to protect your rights and regain access to your funds. Do not hesitate to contact us for an analysis of your situation.
Frequently asked questions
What is an abusive seizure-attribution?
A distraint order is deemed to be abusive when the creditor commits a fault, for example by taking a disproportionate enforcement measure (an essential criterion for assessment), or one that is unnecessary, or by maintaining it when he no longer has the right to do so. The enforcement judge assesses whether a measure is abusive on a case-by-case basis.
What is the unseizable bank balance (UBS)?
The unattachable bank balance (SBI) is a sum protected by law that must be left in the debtor's account after a seizure. It is a flat-rate amount corresponding to the amount of the RSA for a single person.
What is the time limit for contesting an attachment order?
The debtor has a period of one month from the date of notification of the seizure by the judicial representative to lodge a dispute with the enforcement judge. This period, which is calculated in calendar days and is extended to the next working day if it expires on a weekend or public holiday, is very strict. You must act before the last day.
Can my entire salary be garnished?
No, your salary is protected and can only be seized in proportions set by law, according to a scale that depends on your level of pay and your family responsibilities. A fraction of your salary cannot be seized.
What is the role of the judicial commissioner?
The commissioner of justice (formerly a bailiff) is the official charged by the creditor with implementing the seizure throughout France. He serves the seizure deed on the bank (garnishee) and then notifies the debtor by official letter.
What is the difference between a protective attachment and an attachment for sale?
The purpose of attachment is to obtain direct payment of a sum of money. Conservatory attachment is a preventive measure that "freezes" the debtor's assets pending a court decision. Seizure for sale involves the seizure of movable assets (car, furniture) with a view to selling them at auction to pay the creditor.
What happens if my company is in receivership?
In principle, the opening of collective proceedings (safeguard, receivership or compulsory liquidation) freezes individual legal action. An attachment for payment made prior to the opening of proceedings remains valid, but the situation is complex. The assistance of a lawyer is therefore crucial for your company.
Can I contest a seizure without a lawyer?
Although legal representation is not always compulsory before the enforcement judge (particularly for claims of less than €10,000), it is strongly recommended. The complexity of the procedure and the legal arguments make the assistance of an expert lawyer essential for an effective defence.
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