Having your bank account seized is often a brutal and destabilising financial ordeal. Carried out without prior warning by a creditor in possession of a writ of execution, it presents the debtor with a fait accompli.
It is possible to challenge this complex procedure, but it is subject to a very strict legal framework and deadlines that must be mastered. The response must be swift and based on solid legal arguments if it is to have any chance of success.
Before delving into the grounds for dispute, it is essential to understand the mechanisms involved. For a detailed presentation of how this procedure works, our article on how attachment works lays the essential foundations.
The strict procedural framework for contesting an attachment order
The seizure-attribution procedure is initiated by serving a writ of seizure on the garnishee, usually your bank. This document, issued by a judicial commissioner (formerly a bailiff), must contain the mandatory information listed in article R. 211-1 of the Code of Civil Enforcement Procedures, failing which it is null and void.
This includes a statement of the writ of execution and a precise breakdown of the sums due in principal, interest and costs. The time of service must also be included.
The garnishee, for example the bank, is obliged to declare the extent of its obligations towards you immediately to the judicial representative and to give a precise answer. Following this act of seizure, the court commissioner has a mandatory period of eight days in which to notify you of the seizure.
This step, known as denouncing the seizure, is crucial. If this step is not followed and the seizure has not been validly denounced, it lapses, i.e. it is annulled and loses all effect.
You have the right to lodge a complaint as soon as you receive this notice of termination. You have 1 month to take action.
To contest the seizure, you must summon the seizing creditor to appear before the competent court, in this case the enforcement judge (JEX) in your place of residence. The summons is a formal legal document, usually drawn up by a lawyer, which sets out the grounds for the dispute.
Under penalty of inadmissibility, a copy of this summons must be served the same day on the bailiff who carried out the seizure, by registered letter with acknowledgement of receipt. This has the effect of informing the court commissioner of the dispute procedure and suspending payment of the funds until the judge's decision.
The garnishee (the bank) must also be informed by letter. If the one-month period expires on a Saturday, Sunday or public holiday, it is extended until the next working day.
Five arguments for contesting an attachment order
An attachment of payment may be contested on formal grounds or on substantive grounds that call into question the claim itself. Here are five grounds frequently raised before the enforcement judge.
1. Invalidity of the writ of execution: the basis for the seizure challenged
To carry out a seizure, the creditor must hold an enforceable title, as set out in article L. 111-2 of the Code of Civil Enforcement Procedures. A deed is only considered enforceable if it bears the executory clause, which authorises the court commissioner to resort to forced execution. The most common enforceable titles are court decisions (judgments, orders) and notarial deeds.
In principle, a first instance court decision is enforceable, even if an appeal is lodged. However, provisional enforcement may have been suspended by the first president of the court of appeal, for example the Paris court.
In order to be enforceable, a notarial deed must not only establish a claim but must also bear the executory formula, which is not always the case for all copies.
The challenge may therefore be based on the fact that the deed presented by the creditor is not a valid enforceable title, either because the court decision has lost its enforceability or because the notarial deed has never received the required form. Without a valid writ of execution, the seizure has no legal basis and must be discharged.
2. The limitation period of the writ of execution: a debt extinguished by time
Article L. 111-4 of the Code of Civil Enforcement Procedures sets a limitation period for the enforcement of enforceable titles. In France, this period is 10 years for court decisions. If the creditor has not taken any enforcement action for a period of 10 years and this period has not been interrupted by a valid act, the enforcement order is time-barred.
The debtor may then raise the statute of limitations on enforcement of the judgment. The statute of limitations is a bar to enforcement: it does not challenge the original validity of the debt, but prevents the creditor from recovering it by force. If the enforcement judge finds that the statute of limitations has expired, he must dismiss the creditor's claims and order the immediate release of the attachment for payment. This argument is particularly relevant to old debts that were thought to have been forgotten.
3. The absence of a liquid and certain claim: a disputable amount
A seizure can only be carried out for a debt that is "liquid and due". A claim is liquid when its amount is precisely determined in money or when the deed contains all the information needed to assess it. If the amount claimed by the creditor is uncertain, the seizure may be contested. This is often the case for old debts, which have been the subject of partial payments that have not been taken into account, or where the interest has been incorrectly calculated due to an error.
The creditor must be able to provide a clear and justified statement. Without a detailed account history, it is impossible to verify the accuracy of the sums claimed, particularly interest.
The Court of Cassation has also reiterated that the enforcement judge has the power and even the duty to request accounts between the parties if necessary (Cass. 2e civ., 15 Apr. 2021, no. 20-13.953). Refusing to do so would be a denial of justice.
It is therefore in the debtor's interest to force the creditor to produce this history. Without this document, the judge will not be able to verify the liquid nature of the claim and will have to cancel the seizure.
4. Failure of the debt to fall due: a debt not immediately payable
The question of when payments are due arises frequently in consumer credit and mortgage contracts. When a borrower stops making monthly payments, the bank or other credit company may declare that the loan has been "accelerated". The effect of this decision is that the entire outstanding capital becomes immediately due and payable, and not just the unpaid instalments. It is on the basis of this total amount that seizure is often carried out.
However, the Court of Cassation, particularly the Commercial Chamber in Paris, has consistently ruled that this practice must be strictly regulated. The forfeiture of the term cannot be pronounced without a prior formal notice, giving the debtor a reasonable period to regularise his situation (Cass. 1re civ., 3 June 2015, no. 14-15.655).
This is an essential condition. A clause that deprives the debtor of this notice period may be deemed unfair (Cass. 1re civ., 22 March 2023, no. 21-16.044). If the notice of acceleration procedure is irregular, the debt is not considered to be fully due and payable. Only the unpaid monthly instalments are. In this case, the levy of execution for the entire loan is unfounded and must be cancelled.
5. Violation of consumer public policy: the weapon of unfair terms
This argument, which is particularly complex and reinforced by the case law of the Court of Justice of the European Union (CJEU), is extremely powerful. It makes it possible to challenge a seizure even if it is based on a court decision that has become final. Consumer law is a law of public order, designed to protect the weaker party to the contract, i.e. the consumer.
The CJEU has ruled that the enforcement court is obliged to determine of its own motion whether the terms of a consumer contract are unfair, even if the court that handed down the original decision did not do so. Previously, res judicata precluded such a review.
Today, when contesting an attachment for payment, a debtor may raise the issue of an unfair clause in the credit agreement that gave rise to the debt. If the enforcement judge recognises the unfair nature of an essential clause (for example, an interest clause), he can paralyse enforcement and order the seizure to be lifted. This remedy offers an unhoped-for chance to turn over a new leaf and dispute a debt, even after a court conviction.
Unseizable assets and income: legal protection for debtors
It is important to know that the law protects some of your financial resources. Not all sums in a debtor's bank account, including a joint account, may be seized. The seizure may also be challenged on the grounds that these protective rules have been breached.
Unattachable bank balance (UBS)
Whatever the nature of the debt (except for a maintenance debt), the law requires the bank to leave a minimum amount of money in your bank account. This is the unseizable bank balance (SBI). It is a flat-rate amount equivalent to the amount of the Revenu de Solidarité Active (RSA) for a single person. This sum must be left automatically in your account, without you having to apply for it. If the bank has blocked your entire account without complying with this obligation, this is grounds for dispute.
Food and social income
Because of their nature, certain sums are wholly or partially exempt from seizure. Their attachment is subject to specific rules and not to the attachment-attribution procedure under ordinary law, which applies to conventional attachable claims. This mainly concerns :
- Family benefits and social allowances (family allowances, RSA, specific solidarity allowance) are in principle completely exempt from seizure. They can only be seized for the recovery of specific debts (for example, undue social security payments).
- Alimony, compensatory benefits, industrial accident annuities and life annuities paid as compensation. Capital or annuities payable under a life insurance policy are also subject to a specific regime and are not freely seizable.
- Part of your earned income (wages, salaries). This income can only be seized under an attachment of earnings procedure, which sets the amount that can be seized according to the level of income. This procedure is distinct from seizure for sale, which concerns material goods.
If the seizure was of sums declared unattachable by law, its validity is directly called into question. The enforcement judge must then order the release of the attachment on these funds, which were not legally seizable.
The procedure for contesting an attachment for payment is a technical one, and the legal time limits for taking action are very short. Arguments must be carefully chosen and legally backed up to convince the enforcement judge. In addition to these grounds, an action may sometimes be based on the nature of the debt. wrongful levy of execution. Asserting your rights in this complex procedure requires precise legal expertise. Our law firm will work with you to analyse your situation, offer you comprehensive assistance and implement the most appropriate dispute strategy.
Sources
- Code of civil enforcement procedures
- Code of civil procedure
- Civil Code
- Consumer Code
- Commercial code
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