Can the enforcement judge (JEX) cancel a debt? This question is often asked by debtors faced with debt collection proceedings. While the role of this magistrate is central to the implementation of legal decisions, it must be said from the outset that the JEX does not have the power to cancel a debt in the legal sense of the term. On the other hand, his intervention can achieve a similar result by paralysing the creditor's proceedings. The assistance of a lawyer is therefore crucial in navigating the complexities of the procedure and putting forward the right arguments at the right time. Our firm, with its expertise in securities and guaranteesThis article explains the judge's real powers and the means of defence available to you.
The role and powers of the enforcement judge (jex)
To understand why the JEX cannot order the cancellation of a debt, it is essential to define precisely its field of intervention and the limits of its power. Its role is not to retry a case, but to ensure that a title is enforced in accordance with the law.
The jex, judge of enforcement difficulties
The jurisdiction of the enforcement judge is strictly defined by article L. 213-6 of the Code of Judicial Organisation. This article gives the judge exclusive jurisdiction to hear disputes relating to enforceable titles and disputes arising during enforcement proceedings. In practical terms, the JE always intervenes following a measure initiated by a creditor, such as a bank account seizure (saisie-attribution), a property seizure or an attachment for sale of movable property. The debtor must then bring the matter before the JEX by way of a writ of summons to contest the enforcement measure. It is during this procedure that the judge's intervention is sought.
This referral places the debtor in a defensive position, as he has to react to a collection action already initiated by a judicial commissioner (formerly a bailiff), a public and ministerial officer. The purpose of this process is to check whether the legal conditions for enforcement have been met, which is the core of his powers.
The essential distinction: jex and juge du fond
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, sometimes referred to as the force of res judicata.
The JEX intervenes after the court decision. His role is to ensure that the court decision is properly enforced, not to call it into question. He cannot, therefore, change the terms of the judgment on which the proceedings are based. He cannot, for example, grant an extension of payment in the strict sense, as this is the prerogative of the trial judge during the trial. The JEX's decision can only grant periods of grace, under very limited conditions. In short, the JEX does not retry the case, but rather monitors the enforcement procedure that has been initiated.
The judge's review of the conditions of seizure
The JEX's power is mainly exercised by controlling the formal and substantive conditions of enforcement. This is how a debt, without being cancelled, can become impossible to recover.
The need for a valid writ of execution
To carry out a seizure, the creditor must hold a writ of execution. Article L. 111-3 of the Code of Civil Enforcement Procedures sets out a restrictive list of these titles. They may include :
- An enforceable court decision (judgement, order, decree).
- An enforceable notarial deed (for example, a mortgage deed).
- A document issued by a court commissioner in the event of non-payment of a cheque.
- A mediation or conciliation agreement approved by a judge.
When faced with a court decision, the JEX's powers are limited. He must ensure that it is enforced. On the other hand, when the creditor acts on the basis of an authenticated deed, such as a notarised loan, the judge's discretionary powers are much wider. This is because there has been no prior judicial debate. The enforcement judge will then be the first judge to examine in detail the claim and the conditions for its collection.
A "liquid and payable" claim: control at the heart of the debate
In addition to a writ of execution, the creditor must prove that the claim is liquid and due, as specified in article L. 111-2 of the Code of Civil Enforcement Procedures. These two concepts are the focus of many disputes.
- A receivable is liquid if it is valued in money or if the deed contains all the information required for its valuation. If the claim is quantified in a court decision, the debate is limited. But in the case of a loan, where the creditor himself calculates the amount due after acceleration, the JEX has extensive powers of control. He can check each line of the calculation: capital, interest, penalties, etc.
- A receivable is due when payment can be claimed immediately. In the case of credit, payment is often due after formal notice has been given and the debt has been accelerated. The JEX will check whether the bank has complied with the process required to make the entire debt due. An irregularly pronounced acceleration of payment, for example, prevents any enforcement measure, including a precautionary measure.
Levers of action to paralyse debt collection before the jex
A debtor who decides to bring a case before the JEX has a number of technical arguments at his disposal to obtain a stay of proceedings. If successful, these arguments can have the effect of cancelling the debt by making it impossible to collect.
The statute of limitations on enforceable titles: the weapon of time
An enforcement order does not give you the right to sue forever. Article L. 111-4 of the Code of Civil Enforcement Procedures sets a limitation period of ten years for the enforcement of judicial enforcement orders (court decisions). This period runs from the date of service of the judgment. Each enforcement measure (payment order, seizure) interrupts this period and starts a new one of the same duration. Checking the statute of limitations is a crucial part of the case analysis.
A lawyer's first reflex in a seizure case is to check the date of the title and the acts of execution that have taken place. If the creditor has been inactive for more than ten years, the title may be time-barred. The JEX will then note the prescription and order the release of the seizure. The debt will not be legally cancelled, but the creditor will have lost his right to recover it by force. The question of prescription is therefore essential.
Settling accounts between the parties: a decisive power for the jex
One of the most important powers of the enforcement judge is to verify the amount of the claim. A decision by the Court of Cassation (Cass. 2e civ., 15 Apr. 2021, no. 20-13.953) has forcefully reiterated that when the amount of the claim is disputed, the judge is obliged to determine it and, in order to do so, to redo the accounts between the parties.
This request to "balance the books" is particularly effective in the case of consumer credit. In fact, while an action for recovery of consumer credit is subject to a two-year limitation period, the interest generated by a court ruling is also subject to this two-year limitation period. A creditor who, eight years after a judgment, claimed all the interest for late payment would be making a mistake. He would only be entitled to two years' interest. The creditor's management of the accounts must therefore be rigorous.
In addition, article 1343-1 of the Civil Code states that any partial payment must first be set off against the interest. If a debtor has made payments and the creditor has set them off against interest that is time-barred, the accounts are distorted. Reconstructing the accounts can be so complex, in the absence of clear documents, that the judge may find it impossible to put a figure on the claim. Faced with this impasse, he may deem the claim to be unliquidated and dismiss the creditor's claim, thereby bringing the attachment proceedings to an end.
Legal compensation and claims for damages for wrongful seizure
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 example, for a breach of his duty to warn) in order to offset his own debt. However, the enforcement judge's jurisdiction is limited. He cannot rule on the creditor's contractual liability, which is a matter for the court hearing the case on the merits.
On the other hand, Article L. 121-2 of the French Code of Civil Enforcement Procedures gives it the power to order the creditor to pay damages in the event that the debtor fails to fulfil its obligations. wrongful seizure. A seizure is considered abusive when it is carried out in bad faith, for a manifestly excessive sum or on unnecessary goods. Abusive seizures are therefore punishable. The compensation awarded in this way can sometimes offset a small debt and lead to the termination of the proceedings. This is an argument often used in cases involving the collection of small consumer loans, where some collection companies sometimes act without checking the validity or statute of limitations of their debt.
Debt cancellation, a competence reserved for other procedures
If the debt cannot be cancelled by the JEX, there are other legal procedures available. It is important to distinguish between them in order to guide an action correctly.
The role of the trial judge in cancelling a claim
Only the court of first instance has the power to declare a contract null and void (for example, a loan contract on the grounds of lack of consent) or to declare an obligation extinguished. An action brought before the court may result in the cancellation of a debt, thereby retroactively erasing the repayment obligation. This action is separate from and often precedes the intervention of the JEX.
The over-indebtedness procedure: a specific route to debt cancellation
For individuals acting in good faith, the personal over-indebtedness procedure, managed by the Banque de France's over-indebtedness commission and supervised by the judge in charge of protection disputes, is the preferred way of obtaining a comprehensive treatment of their debts. Within this framework, which is a genuine public service, a recovery plan can be put in place or, if the debtor's financial situation is irremediably compromised, all or part of the debt can be written off. This procedure has a direct effect on the very existence of the debt, far beyond the powers of the JEX.
The enforcement judge plays a crucial regulatory role in debt collection. Although he cannot cancel a debt, his power to control the procedure and conditions of enforcement provides the debtor with effective means of defence. A lawyer's analysis is essential for identifying the flaws in a case and presenting the relevant technical arguments to the judge. If you are subject to an attachment order, our firm can analyse your situation and advise you on the best strategy to adopt.
Sources
- Code of judicial organisation: article L. 213-6
- Code of civil enforcement procedures: articles L. 111-2, L. 111-3, L. 111-4, L. 121-2
- Civil Code: articles 1289 et seq. (on set-off), 1343-1 (on imputation of payments)
- Court of Cassation case law
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