Attachment is a formidable procedure for recovering debts. Introduced by the Act of 9 July 1991, this mechanism enables a creditor in possession of a writ of execution to obtain immediate payment of his claim by seizing the sums owed to his debtor by a third party. This article details the rigorous formalities involved in seizure of assets; for an overview of how it works and the issues involved, see our complete guide. Even with a strict formalism, the seizure-attribution can present some difficulties. unexpected pitfalls and practical cases that need to be controlled.
1. The writ of attachment
Exclusive jurisdiction of the commissaire de justice
The seizure-attribution deed falls within the exclusive remit of judicial officers (formerly bailiffs). This exclusivity derives from article L. 122-1 of the French Code of Civil Enforcement Procedures (CPCE), which reserves the right to levy execution to these officers.
A writ of seizure drawn up by a sworn clerk would be null and void, without the need to prove a grievance. The Court of Cassation confirmed this rule in a ruling dated 28 June 2006 (no. 04-17.514), pointing out that enforcement reports are excluded from the jurisdiction of clerks.
The Commissioner's territorial jurisdiction now extends to the Court of Appeal of his or her place of residence, in accordance with Decree no. 2021-1625 of 10 December 2021.
In view of the complexity and rigour required by this procedure, support from a lawyer specialising in attachment is often essential to ensure compliance and optimise the chances of success.
Mandatory content of the writ of attachment
- Identification of the debtor (name, address or company name)
- Statement of the enforcement order justifying the seizure
- A detailed statement of the sums claimed (principal, costs, accrued interest and provision)
- Indication that the garnishee is personally liable to the creditor
- The reproduction of several articles of the Code relating to the rights and obligations of the parties
Particular attention must be paid to the breakdown of sums. In a judgment of 23 February 2017 (no. 16-10.338), the Court of Cassation ruled that when a creditor bases his attachment on several enforceable titles, he must submit a separate breakdown for each.
Case law is strict on this point, but more lenient on calculation errors, considering that they do not affect the validity of the deed.
Service on the garnishee
The document must be served on the third party. In the case of banking institutions, service must be made at the registered office or branch that holds the debtor's accounts (Cass. 2e civ., 22 March 2006, no. 05-12.569).
Since 1 April 2021, article L. 211-1-1 of the CPCE has required electronic transmission when the garnishee is an institution authorised to maintain deposit accounts.
In the specific case of a public administration, the document must be served on the public accountant assigning the expenditure (art. R. 143-3 CPCE). Service on any other administrative department would be null and void.
2. The garnishee's obligation to provide information
Scope of the obligation
The garnishee must provide a complete and accurate statement of :
- The extent of its obligations towards the debtor
- Terms and conditions affecting these obligations
- Any previous assignments, delegations or seizures
The purpose of this obligation is to enable the creditor to know the exact basis for the seizure. In the case of bank accounts, the third party must specify the nature of the accounts and their balance on the day of the seizure.
Deadline for reply
Article R. 211-4 of the CPCE requires an "immediate" response. This immediacy has been interpreted strictly by certain courts. The Roanne TGI (6 May 1993) ruled that this expression "implies an immediate response and excludes any delay, however reasonable".
There is an exception for public accountants, who have a 24-hour period (art. R. 211-4, para. 3).
Legitimate reasons for non-response
- Service on a person lacking legal knowledge (Cass. 2e civ., 28 January 1998, no. 95-18.340)
- The need for complex checks
- Irregular service (at home or at the town hall)
However, the following do not constitute legitimate reasons :
- The absence of directors at the time of the bailiff's visit
- Computer malfunctions
- The existence of a dispute between the third party and the debtor
Penalties for non-compliance
- If there is no response without a legitimate reason: the third party may be ordered to pay the costs of the seizure, up to the limit of its obligation to the debtor.
- In the event of negligence or misrepresentation: the third party may be ordered to pay damages.
These two penalties are distinct, as the Court of Cassation stated in several rulings dated 5 July 2000 (no. 97-19.629 and no. 97-22.407).
For the first sanction to apply, two cumulative conditions are necessary: the absence of a response and the existence of an obligation owed by the third party to the debtor. A third party who does not respond but owes the debtor nothing can only be ordered to pay damages.
3. Notification to the debtor
Notice period
To be valid, the seizure must be notified to the debtor within eight days (art. R. 211-3 CPCE). This period begins the day after the garnishee is notified. For an in-depth explanation of this process, its deadlines and compulsory information, see our dedicated article on the notice of attachment.
As this is a procedural deadline, it expires on the 8th day at midnight, with an extension to the next working day if the deadline falls on a Saturday, Sunday or public holiday.
The question remains as to whether the time limit should be increased because of the distances involved for debtors domiciled overseas or abroad. To be on the safe side, the eight-day period should be respected.
Mandatory content of the notice of termination
- A copy of the seizure report
- An indication, in clearly visible lettering, of the one-month time limit for lodging an objection and the date on which this time limit expires
- Designation of the competent court
- For account seizures: indication of the amount left available to the debtor
The Cour de cassation is particularly vigilant when it comes to indicating the time limit for contesting a claim. In a judgment of 2 December 2004 (no. 02-20.622), it ruled that an error in the expiry date necessarily adversely affected the debtor.
Service of document
Unlike the writ of attachment, the information may be served by a sworn clerk, as it is a simple act of information and not an act of enforcement (Cass. 2e civ., 12 October 2006, no. 05-10.850).
The notice must be sent to the debtor or his legal representative. In the case of an adult under guardianship, the document must be served on both the adult and his or her guardian (art. 467 of the Civil Code).
When the debtor is the subject of collective proceedings, specific rules apply:
- In compulsory liquidation: notification to the liquidator
- In receivership: notification to the administrator if his mission includes representing the debtor
- Safeguard: notification to the debtor (except in the case of a specific assignment entrusted to the administrator)
Lapse in the event of failure to meet the deadline
If the eight-day time limit is not observed, the seizure lapses. The allocation of the claim is then considered null and void.
This lapse has full retroactive effect, depriving the seizing creditor of all rights to the seized claim.
Article L. 211-2, paragraph 4 of the CPCE provides that "seizures and levies subsequent to the seizure [...] take effect on their date", thus enabling other creditors to benefit from a seizure that has lapsed.
4. Payment by the garnishee
In addition to the formal stages, the seizure-attribution process produces important legal effects and opens up specific avenues of challenge.
Principle of deferred payment
Despite the immediate effect of the seizure, payment to the creditor is deferred to allow for any disputes.
Article R. 211-6 of the CPCE provides that the garnishee shall make payment on presentation of a certificate of non-contestation issued by the registry or the bailiff after expiry of the one-month period following notification.
In the event of a dispute, payment is suspended until the judge has made a decision.
Advance payment
Article R. 211-6, paragraph 2 authorises payment before expiry of the time limit if "the debtor has declared that he does not contest the seizure". This declaration must be made in writing.
This mechanism, set out in the notice of termination, has an advantage for the debtor: by authorising immediate payment, it avoids the interest that would continue to accrue during the disputation period.
In an opinion dated 11 March 1994, the Court of Cassation stated that this declaration does not prevent a subsequent action for recovery of undue payment based on article L. 211-4 of the CPCE.
Procedure in the event of refusal of payment
If the garnishee refuses to pay despite the absence of any dispute, article R. 211-9 of the CPCE allows the creditor to apply to the enforcement judge to obtain a writ of execution against the third party.
This procedure requires a writ of summons to be served before the enforcement judge in the place where the debtor is domiciled, even if this place is far from the domicile of the garnishee.
In the event of default for any other reason, article R. 211-8 provides that the creditor retains his rights against the principal debtor, unless the default is attributable to his own negligence.
Sources
- Code of civil enforcement procedures: articles L. 122-1, L. 211-1 to L. 211-5, L. 211-1-1, R. 211-1 to R. 211-23, R. 143-1 to R. 143-3
- Cass. 2nd civ. 28 June 2006, no. 04-17.514
- Cass. 2nd civ. 23 February 2017, no. 16-10.338
- Cass. 2nd civ. 22 March 2006, no. 05-12.569
- Cass. 2nd civ. 28 January 1998, no. 95-18.340
- Cass. 2nd civ. 5 July 2000, n°97-19.629, n°97-22.407
- Cass. 2nd civ. 2 December 2004, no. 02-20.622
- Cass. 2nd civ. 12 October 2006, no. 05-10.850
- TGI Roanne, 6 May 1993
- Opinion of the Court of Cassation, 11 March 1994
- Decree no. 2021-1625 of 10 December 2021
- Law no. 91-650 of 9 July 1991
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