A creditor has instructed a court commissioner to seize your bank account. Faced with this enforcement measure, the question arises: is it possible for a judge to cancel a debt? The direct answer is no. The JEX does not have the power to cancel a debt. However, his intervention may lead to an equivalent result, or even to the cancellation of the proceedings, permanently paralysing the creditor's legal action. In such cases, the assistance of a lawyer is crucial to navigating the complexities of civil proceedings and putting forward the right arguments. Our firm, with its expertise in securities and guarantees and, more broadly, in warranty law, sheds light on the real powers of this judge and the defence levers available to you.
The role of the JEX: control over enforcement, not debt cancellation
To understand how the intervention of the JEX can neutralise a debt recovery procedure, it is essential to define its precise scope. area of intervention and the limits of its power. Its role is not to retry a case, but to ensure that a title is implemented in accordance with French law.
Enforcement Difficulties Judge
The jurisdiction of the enforcement judge is strictly defined by article L. 213-6 of the Code of Judicial Organisation. This article gives the enforcement judge exclusive jurisdiction to hear disputes relating to enforceable titles and disputes arising during enforcement proceedings, including precautionary measures. In practical terms, its intervention always follows a measure initiated by a creditor, such as a seizure of a bank account (attachment), a seizure of real estate or a seizure for sale of movable property. The debtor must then bring the matter before the competent court, generally the JEX of the debtor's place of residence, by means of a writ of summons drawn up by a lawyer to contest the measure and request its annulment.
The essential distinction: JEX and trial judge
A fundamental distinction must be made. The judge on the merits (for example, the court) is the one who decides the dispute on the merits of the law: he decides whether a debt exists, how much it is and orders the debtor to pay. Once the decision is final, it acquires the authority of res judicata. The JEX intervenes after this judicial decision. Its role is to ensure that the decision is properly enforced, not to call it into question in the context of new proceedings. He cannot therefore modify the judgment that serves as the basis for the proceedings. However, as we shall see, this boundary can become porous in specific cases, particularly in consumer law.
Checking the conditions of seizure: the first line of defence
The JEX's power is exercised mainly through control of the formal and substantive conditions of enforcement. This is how a debt, without being cancelled, can become impossible to recover, leading to the cancellation of the seizure.
The validity of the enforcement order: the creditor's key word
In order to carry out a seizure, even a precautionary seizure, the creditor must hold a enforcement order. Article L. 111-3 of the French Code of Civil Enforcement Procedures (CPCE) sets out an exhaustive list. In addition to a valid title deed, the creditor must prove that the claim is "liquid and due". In other words, a quantified (or quantifiable) claim for which payment has fallen due. When faced with a court decision, the JEX's power of review is limited. On the other hand, when the creditor acts on the basis of a notarised deed (a loan, for example) bearing the enforcement formula, the JEX is the first judge to examine the claim, which gives it much wider powers of assessment.
An exception to the principle: the JEX's review of the substance of the law in the case of unfair terms
The principle is that the JEX cannot retry the merits of a case that has already been decided. However, European and French case law has created a major loophole in this principle, in particular to protect consumers. If a trial judge has handed down a decision without examining the potentially unfair nature of the terms of a contract (a consumer credit with a high interest rate, for example), the JEX not only has the power but also the duty to carry out this examination. Even in the face of a decision that has the force of res judicata, the JEX can set aside the application of a clause deemed to be unfair (for example, an interest or penalty clause) and thus obtain the annulment of enforcement. This blocking effect, which is often overlooked, demonstrates legal expertise and can be an extremely powerful defence lever for the debtor.
The 4 levers of action to obtain cancellation of debt enforcement before the JEX
A debtor who contests a seizure has a number of technical arguments at his disposal to obtain its release. If accepted by the judge, these arguments can make it impossible to recover the debt and result in the procedure being annulled.
1. Invoking the limitation period of the writ of execution: the weapon of time
A writ of execution does not give an eternal right to sue. Article L. 111-4 of the French Code of Civil Enforcement Procedures sets a time limit for enforcement. ten-year limitation period for the enforcement of court-ordered enforceable titles. This period runs from the date of service of the judgment. Each act of enforcement, such as a summons to pay or a writ of seizure, interrupts this period and starts a new one. If the creditor has been inactive for more than ten years, the statute of limitations has expired. The JEX's decision will then order the debt to be discharged, and the debt, without being formally cancelled, will become irrecoverable by force.
2. Requiring an audit of the accounts: the JEX's power of control over the amount claimed
One of the most important powers of the JEX is that of verifying the exact amount of the claim. The Court of Cassation has repeatedly pointed out that when the creditor's calculation is disputed, the judge is obliged to redo the accounts between the parties. This argument is particularly effective in credit matters, where late payment interest is itself subject to a two-year limitation period. In addition, the rules for setting off payments set out in article 1343-1 of the Civil Code (payment is first set off against interest) are often misapplied by creditors. If the calculation is incorrect or impossible to verify, the judge may consider that the claim is not liquid, which leads to the seizure being declared null and void.
How do you initiate an audit request?
To request an audit of the accounts, the debtor must, through his lawyer, draw up a writ of summons before the JEX. This procedural document, which initiates the proceedings before the judge, must clearly set out the grounds for contesting the statement of account. It is not enough to contest the amount as a whole. Detailed submissions must be provided, pointing out calculation errors, incorrect charges or the application of time-barred interest. The writ of summons must be filed with the registry of the competent court within the time limit set after service of the writ of attachment. This formal process is distinct from sending a simple registered letter with acknowledgement of receipt (LRAR), which does not have the same value for seising a court. The debtor must produce any documents and evidence at his disposal (payment schedules, statements, proof of payments) to support his argument and enable the judge to recalculate the debt at the hearing.
3. Challenging an abusive seizure: punishing the creditor's excesses
A seizure may be deemed abusive if it is carried out in bad faith or for a manifestly excessive sum. Abuse of the right to seize is punishable. Article L. 121-2 of the CPCE allows the JEX to order the creditor to pay damages to the debtor, which may amount to several thousand euros. In some cases, this compensation can be offset against the debt, resulting in the termination of the proceedings. This argument is often relevant when faced with debt collection companies that initiate proceedings without seriously checking the validity or statute of limitations of their claim, thereby causing damage to the debtor.
4. Raising statutory set-off: a limited remedy
Set-off is a mechanism by which reciprocal debts are extinguished. A debtor might be tempted to ask the JEX to order the creditor to pay him damages for a contractual fault in order to offset his own debt. However, this application falls within the jurisdiction of the judge dealing with the merits of the case and not the JEX, for which the debtor may, if necessary, apply for legal aid. This severely limits the scope of this argument in the context of a challenge to an attachment.
The garnishee (bank, employer): an unexpected ally for the debtor?
During a seizure of assets or a sequestration order, one party is often perceived as passive: the garnishee (the bank holding the account or the employer paying the wages). However, the law imposes strict obligations on the garnishee, failure to comply with which may invalidate the entire procedure. Article R. 211-4 of the CPCE requires the garnishee to declare "forthwith" to the bailiff the extent of his obligations towards the debtor. Case law interprets this obligation to provide this information very strictly. A late, inaccurate or incomplete declaration constitutes a fault. The penalty is severe: the garnishee may be ordered to personally pay the sums owed to the creditor, as set out in article R. 211-5 of the CPCE. For a debtor, a procedural error committed by its own bank can therefore become an unexpected and decisive defence, leading to the seizure being unsuccessful and cancelled.
Strategic analysis: JEX or over-indebtedness proceedings for debt write-off?
Faced with a debt that has become unmanageable, the debtor may hesitate between contesting a seizure before the JEX and filing a case for overindebtedness. These two approaches respond to different situations and do not have the same consequences. Referral to the JEX is a targeted defence strategy. It is appropriate when a precautionary measure or enforcement procedure has been initiated on the basis of an enforceable title that is open to challenge (statute of limitations, incorrect calculation, unfair clause). The aim is to have the attachment set aside, which results in the enforcement measure being cancelled, but not the debt itself being cancelled by the JEX. The over-indebtedness procedure is a comprehensive approach. It is aimed at individuals acting in good faith whose financial situation has deteriorated. The commission, a public service, deals with all debts (including the debts of a sole proprietorship under certain conditions) and may result in a recovery plan, payment deadlines or, if the situation is "irretrievably compromised", partial or total cancellation of debts. This is the only way to truly write off debts.
Real debt cancellation procedures: when the JEX is not the solution
It is crucial to make a clear distinction between the role of the enforcement judge and the procedures that enable the debt to be genuinely cancelled at source.
Action before the court hearing the case to annul the contract
Only the court of first instance has the power to declare a contract null and void. Such a court decision annuls the debt at its source, making it disappear retroactively. This action is independent of any enforcement proceedings.
The over-indebtedness procedure for a global write-off
As mentioned, the personal over-indebtedness procedure is the main route for cancelling debts. Managed by the commission de surendettement and supervised by the juge des contentieux de la protection, it can lead to personal recovery with or without judicial liquidation, resulting in total or partial cancellation of liabilities, including for a maintenance debt under very strict conditions, after a debate before the judge.
The enforcement judge plays a crucial regulatory role. Although he cannot order the cancellation of a debt, his power of control over the procedure provides the debtor with effective means of defence. A lawyer's analysis is essential to identify any loopholes and present the relevant arguments to the judge. If you are the subject of a seizure, our firm can analyse your situation and advise you on the best strategy, including whether to appeal the JEX's decisions, which in some cases can be brought before the First President of the Court of Appeal.
Sources
- Code of judicial organisation: article L. 213-6
- Code of Civil Enforcement Procedures (CPCE): articles L. 111-2, L. 111-3, L. 111-4, L. 121-2, R. 211-4 and R. 211-5
- Civil Code: article 1343-1 (on the allocation of payments)
- Case law of the Cour de cassation and the Court of Justice of the European Union (CJEU)
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