They are called securitisation mutual funds. You've never heard of them in your contractual relationship with the bank that financed your old consumer credit, and yet you've just been the subject of a attachment on your bank accounts. According to the seizure deed, they would have benefited from an assignment of the debt owed to you by your initial contact. Is this legal and, more importantly, how can you contest the seizure?
Transfer of receivables to a securitisation vehicle: a lawful process
In a very large number of cases challenging seizures of assets, we note the presence of seizing creditors who are securitisation bodies.
Although perfectly legal, this phenomenon of selling off receivables that are likely to be irrecoverable is directly linked to the economic crisis of 2008.
The legal mechanism of assignment of receivables existed long before, but it is since this period that banks have had an obligation to "clean up" their balance sheets, which involves disposing of bad debts.
So-called securitisation companies have seized on this situation, supported in their action by the legislator. They have no legal personality. The law therefore treats them as co-ownerships, in accordance with article L 214-180 of the French Monetary and Financial Code.
Securitisation is a simplified process for assigning receivables, which has the immense advantage of dispensing its operator from the costly formality of notifying the assigned debtor of the assignment. Despite this simplification, the complexity of assignments of receivables can raise questions about the availability or unseizability of some of them. To find out more, read our article on unavailable and unseizable claims.
Securitisation is a faster way of acquiring entire portfolios of receivables for a single price.
In practice, once they have identified all the receivables they wish to sell, the banks issue a call for tenders, which is generally answered by two or three companies specialising in debt collection.
The determination of the transfer price is then based on variable methods. Some take into account the value of the prices assigned to each claim ؛ others do not and are based on pure speculation.
The creditor status of the garnishee
Just because the assignment of a claim is authorised in principle does not necessarily mean that the attachment for payment is valid.
In accordance with Article L. 211-1 of the Code of Civil Enforcement Proceduresonly a " a creditor with a writ of execution evidencing a liquidated and payable claim "In order to obtain payment, the debtor's claims for a sum of money may be seized from a third party.
The rules of the game applicable to securitisation bodies may have been simplified, but they still have to demonstrate their creditor status.
This is even truer in the case of a succession of assignments of claims. The enforcement judge must be able to trace the chain of assignments.
We have developed a rigorous analysis method to detect seizures likely to be cancelled.
Identifying a disputable levy of execution
First of all, we carefully examine and compare the references of the assigned debt. If the number of the credit agreement mentioned in the initial loan offer and reported in the application for an order for payment is not found in the deed of assignment, this is a strong argument.
Next, our team examines the writ of execution that serves as the basis for the seizure. For example, the judgment referred to in the writ of attachment must be identical to the one actually produced. Similarly, the deed of assignment of claims must refer to the same judgment.
Our lawyers also compare the amount of the principal claim as set out in the order for payment with the amount set out in the assignment note. If the amount does not appear, or if it varies, this makes it even more difficult to identify the creditor.
We also analyse the names of the various creditors involved:
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- Who was the original credit institution?
- Who is the assignee creditor?
- And who is the distraining creditor?
Finally, we check the identity of the debtor. It must be the same person who has been ordered to pay and who is the subject of the assignment of debt. Sometimes the debtor's name is not given in full (the first name is missing, for example).
So, should you contest the seizure-attribution carried out by the assignee creditor?
What are my chances of success if I have been assigned a claim? To find out what arguments can be raised in order to contesting an attachment orderTo find out more about the different types of debt, including those arising from the assignment of receivables, consult our dedicated guide.
At the end of this analysis of the documents in the file, the securitisation body's status as a creditor must be sufficiently substantiated. If this is not the case, we strongly recommend that you contest the seizure-attribution. SOLENT AVOCATS, with its lawyers specialising in attachmentwill help you with this process.
Please note that you have one month in which to contest the seizure. So contact us quickly if you have been seized after a debt assignment!
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