Attachment is a dreadful enforced collection procedure for debtors, who see their claims transferred to their creditors. The notification of this act by a court commissioner is a fundamental step: it informs you of the measure and constitutes the starting point of the period for contesting it. Understanding how it works, the deadlines and the compulsory details is essential to safeguarding your rights and organising an effective defence. If anything is missing, or if you do not notify us in time, the whole procedure may be null and void.
What is attachment for payment and its immediate effect?
Attachment is a compulsory execution procedure that enables a creditor, in possession of a writ of execution, to seize a liquid and due claim for a sum of money that the debtor has against a third party. As specified in article L. 211-1 of the Code of Civil Enforcement Procedures (CPCE), this procedure applies to claims for sums of money. The procedure involves three parties: the seizing creditor, the seized debtor and the seized third party (often a bank, but also a tenant, a notary in charge of a sale, or a customer of the debtor).
Its main characteristic is its immediate effectprovided for in Article L. 211-2 of the CPCE. As soon as the seizure report is served on the third party, ownership of the seized claim is instantly transferred to the seizing creditor, up to the amount of the sums for which the seizure is carried out. This mechanism is crucial: it gives the creditor an exclusive right to the funds, protecting it from other creditors, even preferential creditors, who may come forward at a later date.
The writ of attachment and its notification to the debtor: a two-stage procedure
The seizure of assets procedure takes place in two distinct and successive stages, orchestrated by a judicial commissioner (formerly a bailiff). Each stage of the procedure is subject to strict formalities, failure to comply with which may result in severe penalties for the validity of the measure.
Compulsory information in the attachment document (Art. R. 211-1 CPCE)
In the first instance, the court commissioner serves the seizure report directly on the garnishee. To be valid, this instrument must contain a number of mandatory details to inform the third party of his obligations. These include
- Full identification of the creditor and debtor (name, company name, address or registered office).
- The enforceable title on which the action is based (judgement, order, notarial deed, etc.).
- A detailed statement of the sums claimed for recovery of the debt (principal, costs and accrued interest), together with a provision for accrued interest.
- The garnishee is prohibited from paying the sums owed to the debtor, on pain of having to pay a second time.
- An indication that the garnishee is personally liable to the distraining creditor.
For a detailed analysis of the formalities of the procedure, see our article on the seizure-attribution procedure, its stages and formalities.
Notification to the debtor: a mandatory deadline of 8 days
Secondly, the court commissioner must inform the debtor of the seizure. This is the act of denunciation. According to article R. 211-3 of the CPCE, this denunciation must be served on the debtor within a period of 8 days following notification of the seizure to the third party. This time limit is mandatory and failure to comply will result in the lapsing for entry.
It is this document, the notification of seizure-attribution, that officially opens the means of recourse for the debtor. It must itself contain specific information, on pain of nullity, including :
- A copy of the seizure report served on the third party.
- A clear statement that the debtor has one month in which to contest the seizure.
- The exact date on which the deadline for lodging an objection expires.
- The designation of the competent court, i.e. the enforcement judge (JEX) with territorial jurisdiction.
Penalties for procedural defects: nullity vs. invalidity of the seizure
In the law of civil enforcement procedures, nullity and lapsing are two distinct sanctions with different consequences, often a source of confusion. However, a clear definition of the distinction between the two is essential when contesting an attachment for payment.
La nullity invalidates a formal defect affecting the validity of a procedural document. For example, the omission of a compulsory statement in the seizure report or in the act of denunciation can lead to the nullity of the act concerned. To be declared null and void, the party invoking the nullity must prove the existence of a grievance, i.e. a prejudice caused by the irregularity (article 114 of the French Code of Civil Procedure - CPC).
The definition of nullity, on the other hand, is different: it sanctions the failure to comply with a due diligence requirement within a given timeframe. It does not affect an act in itself, but the entire procedure, which is rendered ineffective. A typical case of attachment is failure to comply with the 8-day time limit for notifying the debtor of the attachment. If the attachment is notified on the 9th day, it lapses. Lapse retroactively annuls the procedure, which is deemed never to have existed.
The crucial role of the garnishee (bank, employer, etc.): obligations and penalties
Although the garnishee is neither a creditor nor a debtor in the original dispute, he plays a central role in the success of the procedure. Their obligations, which are strictly defined, are heavily penalised if they are breached. This declaration work is crucial.
The obligation to declare: what must the garnishee say and when?
As soon as the seizure is notified, the garnishee is obliged to declare to the court commissioner, without delay, the extent of its obligations towards the debtor being seized. Article L. 211-3 of the CPCE specifies that the garnishee must also mention any terms that may affect these obligations (term, conditions) and any previous assignments of claims, delegations or seizures.
This declaration must be made immediately and accompanied by all supporting documents. Case law is particularly strict on the "immediately" nature of this obligation. A delay of even a few hours may be penalised if the third party does not have a valid excuse.
Legitimate grounds for non-declaration: a loophole governed by case law
The law provides that the garnishee may escape the penalty if it can show a "legitimate reason" for its failure to make a declaration or its late or inaccurate declaration. This concept is not defined in the legislation and is left to the discretion of the judge. The case law of the Cour de cassation, in more than one decision of its second civil division (Civ. 2e), has recognised as legitimate reasons, for example, the complexity of the accounts to be analysed, which made an immediate response impossible, or the absence at the time of the referral of a person qualified to provide the information required.
The impact of dematerialisation on bank attachment orders
In order to speed up procedures and make them more reliable, a new version of article L. 211-1-1 of the CPCE, resulting from a modernisation law and specified by decree, has made it compulsory since 1 April 2021 to send attachment documents to banks electronically. This dematerialisation (transmission of secure data) has major practical implications: it ensures instant and secure transmission, reduces disputes relating to the date of receipt of the document and centralises the banks' responses. On the other hand, it increases the demand for responsiveness on the part of the garnishee, who can no longer invoke postal delays to justify a late declaration. For more information, see the official page of the law.
Challenging an attachment order: time limits, grounds and procedure before the court of first instance (JEX)
Notification of the seizure gives the debtor the right to contest it. This challenge is the main means of defence for asserting rights, but its implementation is subject to very strict conditions in terms of time and form. The procedure takes place exclusively before the Execution Judge (JEX), who is the competent judge for all matters relating to forced execution.
The one-month time limit for taking action and double notification
The debtor has a period ofone month from service of the notice of seizure to contest the seizure. To take action, he must serve a writ of summons on the seizing creditor to appear before the JEX.
Please note that an additional formality is required in order for the challenge to be admissible: on the same day as the summons is issued (or on the first working day thereafter at the latest), the debtor must notify the commissioner who carried out the seizure of the summons by registered letter with acknowledgement of receipt. Failure to make this "double notification" is fatal to the dispute procedure. To find out which strategies and arguments to develop, consult our guide to effectively contesting an attachment order.
The main grounds for challenge accepted by the courts
There are several grounds for contesting an attachment for payment. They may relate to the substance of the right or to the regularity of the procedure. The most common are :
- Contesting the writ of execution : the debtor may argue that the instrument on which the seizure is based is null and void, no longer valid, or that the claim has been extinguished or is no longer certain, liquid and due (by payment, prescription, etc.).
- Contesting the amount of the claim : the statement of amounts claimed by the creditor may be incorrect.
- Unseizability of sums : certain sums are exempt from seizure by their very nature (minimum social benefits such as the RSA or the specific solidarity allowance, family benefits, etc.). The debtor may contest the seizure if it relates to these funds.
- Irregularity of the seizure procedure : a formal defect in the seizure or notification report, or failure to comply with the time limits, may result in the measure being null and void, unlike a precautionary seizure that is incorrectly converted or a seizure for sale that is incorrectly notified.
- Wrongful seizure : A seizure may be deemed abusive if it is carried out in a vexatious manner or if the creditor takes disproportionate measures against the debtor.
Special cases and complex situations relating to distraint of assets
In addition to the standard procedure, seizure-attribution can be used in complex legal situations that require in-depth analysis and special expertise, particularly when a notary holds funds on behalf of the debtor.
Attachment of bank accounts: what about unattachable sums and joint accounts?
Attachment of a bank account is governed by specific rules. The bank is obliged to leave a sum equivalent to the lump sum of the RSA available for the debtor, known as the "RSA". Irrecoverable Bank Balance (IBS). For other unseizable sums paid into the account (alimony, unemployment benefit, etc.), the debtor must prove their origin to the bank in order to obtain their return. For a full analysis, please refer to our article on rules for the protection of unseizable claims.
In the event of seizure on a joint accountthe bank must freeze the entire balance. It is then up to the non-debtor co-holder to prove that the funds belong to him or her in order to obtain release. This proof is free, but the passive solidarity between joint debtors can complicate the situation. The funds are deemed to belong equally to each party, unless proven otherwise. This presumption of joint and several liability may be challenged.
Relationship with collective proceedings (safeguard, reorganisation, liquidation)
In principle, the opening of collective proceedings (safeguard, reorganisation or judicial liquidation) in the name of the debtor paralyses the individual actions of creditors. However, the immediate attributive effect of the seizure-attribution plays a decisive role. If the seizure was carried out before the opening judgment, the allocation of the claim to the seizing creditor is definitive. This means that the distraining creditor is not subject to competition from other creditors and can be paid by the garnishee, subject to any disputes. This complex issue highlights the impact of insolvency proceedings on seizures.
The rare case of seizure-attribution on oneself
One unusual legal situation is where the creditor is also the debtor of its own debtor. In this case, can he levy an attachment order against himself? Under the old system of garnishment, this was possible. However, modern case law, based on the mechanism of immediate attributive effect, prohibits it. You cannot be both the person who receives the claim and the person who owes it, as the claim would be immediately extinguished by confusion, which would render the procedure meaningless. This textbook case illustrates the technical subtleties of attachment for payment.
The procedure for notifying and contesting an attachment order is technical and subject to strict deadlines. An error or delay can have irreparable consequences for your rights. Given the complexity of these rules, the assistance of a lawyer who is an expert in seizure of assetsregistered with a bar association, is decisive in securing your position, whether you are a debtor, creditor or garnishee.
Sources
- Code of civil enforcement procedures (Civ. Enforcement)
- Commercial code
- Civil Code
- Law no. 91-650 of 9 July 1991 reforming civil enforcement procedures
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