Attachment is a formidable mechanism for creditors with a writ of execution. This procedure makes it possible to obtain rapid payment of a debt by blocking the sums owed to the debtor by a third party. It has immediate and radical legal effects, but is subject to a system of contestation that guarantees the debtor's rights.
1. Legal effects of attachment for payment
Partial or total unavailability of seized sums
In accordance with article L. 141-2 of the Code des procédures civiles d'exécution (CPCE), the seizure-attribution deed makes the sums subject to it unavailable. This unavailability is generally partial: it is limited to the sums for which the attachment is made.
However, in the specific case of a levy of execution served on a bank, the unavailability becomes total. Article R. 211-19 combined with article L. 162-1 of the CPCE provides that all of the debtor's accounts are blocked for fifteen working days following notification.
In practical terms, this prevents:
- The garnishee to pay the debtor
- The latter to assign its claim
- Any set-off against a subsequent claim
Immediate assignment of the claim
Article L. 211-2 of the CPCE sets out the main distinguishing feature of attachment for payment: "The act of seizure entails, for the sums for which it is carried out, immediate allocation to the distrainor of the seized claim available in the hands of the third party, as well as all its accessories.
As soon as the document is served, the creditor becomes the owner of the seized claim. This feature explains why this procedure is so effective: the claim instantly leaves the debtor's assets and enters those of the distraining creditor.
No subsequent entries
The logical consequence of this immediate transfer is that any subsequent seizure has no effect on the claim already assigned. Article L. 211-2, paragraph 2 of the CPCE states that "Subsequent notification of other seizures or any other levy, even by preferential creditors, and the occurrence of a judgment opening insolvency proceedings shall not call this allocation into question.
This "first come, first served" principle applies regardless of any privileges that subsequent creditors may have. Even a super-privileged creditor (such as an employee) arriving after the allocation cannot challenge the seizure.
Irrelevance of the opening of subsequent collective proceedings
The immediate attributive effect even resists the subsequent opening of collective proceedings. The Court of Cassation confirmed this solution in a landmark decision of 22 November 2002 (Cass. ch. mixte, 22 Nov. 2002, no. 99-13.935). A creditor who has levied an attachment for payment before the commencement of collective proceedings is therefore not subject to collective discipline.
The Mixed Chamber affirmed that "the seizure by way of attachment of a claim for successive performance, levied against its holder before the occurrence of a judgment opening the latter's receivership or liquidation, shall continue to have effect on the sums due by virtue of this claim after the said judgment"..
2. Special cases affecting the effects of seizure
Successive performance claims
Successive performance claims, such as rent, are a special case. Article L. 112-1, paragraph 2 of the CPCE authorises the seizure of these claims.
A single attachment order is sufficient to cover all future instalments. This rule applies even if the debtor is subsequently the subject of collective proceedings, as confirmed by the aforementioned case law.
Payment is then made in instalments. According to article R. 211-15 of the CPCE: "If there is no dispute, the sums due after the seizure are paid on presentation of the certificate provided for in article R. 211-6.
Unavailability resulting from a special text
Certain special texts can make sums of money unavailable, thus preventing them from being seized. Here are a few examples:
- Insurance indemnities against fire, hail, etc. are allocated to preferred or mortgage creditors in accordance with article L. 121-13 of the Insurance Code.
- Sums deposited as security for the forward sale of a building under construction are exempt from seizure (article L. 261-12, paragraph 2 of the Code de la construction et de l'habitation).
- Funds received by a lawyer on behalf of his client and channelled through a CARPA account cannot be seized (Cass. 2e civ., 18 Feb. 1985).
These special unavailabilities prevent the seizure by way of attachment, which can only relate to available sums.
Multiple seizures on the same day
Article L. 211-2, paragraph 3 of the CPCE governs the case of multiple seizures served on the same day: "However, seizure documents served on the same day in the hands of the same third party are deemed to have been served simultaneously. If the sums available are insufficient to pay off all of the creditors thus seized, they shall come into concurrence with each other.
In this exceptional case, the "first come, first served" rule gives way to the principle of competition between creditors.
The Court of Cassation specifies that this distribution must be made on a pro rata basis, without taking into account creditors' privileges (Cass., opinion, 24 May 1996, no. 09-60.004).
3. Dispute resolution system
Time limit for contesting
The seizure-attribution may be contested within a strict period of one month from the date on which the debtor is notified of the seizure. Article L. 211-4 of the CPCE provides that "Any dispute relating to the seizure may be lodged within one month.
This deadline is of a special nature:
- It cannot be suspended or interrupted (CA Colmar, 30 May 1994), except in the event of the opening of collective proceedings (Cass. com., 19 Jan. 1999, no. 96-18.256).
- If it expires, any subsequent challenge is inadmissible.
- It runs from the time the debtor is notified of the seizure.
After this period, only an action for recovery of undue payment remains possible for the debtor, but at its own expense (article L. 211-4, paragraph 3 of the CPCE).
Competent judge
Disputes come under the exclusive jurisdiction of the enforcement judge. Article R. 211-10 of the CPCE states that "Disputes shall be brought before the enforcement judge of the place where the debtor resides.
This court has broad jurisdiction. According to article L. 213-6 of the Code de l'organisation judiciaire, it has jurisdiction over "exclusively, difficulties relating to enforceable titles and disputes arising in connection with forced execution, even if they concern the substance of the law.
Please note that the judge may not amend the decision on which the prosecution is based, nor suspend its enforcement except in the cases provided for by law.
Forms of protest
The challenge must be made by writ of summons (CPCE, art. R. 211-11). A number of formalities must be complied with, failing which the claim will be inadmissible:
- The summons must be served within one month.
- It must be notified to the bailiff on the same day by registered letter with acknowledgement of receipt.
- The garnishee must be informed by letter
- A copy of the summons must be delivered to the court clerk's office no later than the day of the hearing.
Case law from 1998 specified that the challenge is admissible if the summons is issued within the one-month time limit, regardless of whether it is registered after this time limit (Cass., opinion, 15 June 1998).
Effects of a dispute on payment
Disputes have the immediate effect of deferring payment. Article L. 211-5 of the CPCE is clear: "In the event of a dispute before the enforcement judge, payment shall be deferred unless the judge authorises payment for the amount he determines.
For successively enforceable claims that are contested, the garnishee must deposit the sums with a receiver appointed by the judge (article R. 211-16 of the CPCE).
However, the judge may authorise a partial payment when:
- The garnishee's debt is not seriously disputable
- The distrainor's claim appears to be well-founded
- In this case, its decision does not have the force of res judicata in the main proceedings (CPCE, art. R. 211-12).
4. Avenues of appeal
Appeals against decisions of the enforcement judge
The decisions of the enforcement judge may be appealed, except in the case of measures of judicial administration (article R. 121-19 of the CPCE).
The time limit for appeal is fifteen days from notification of the decision (article R. 121-20 of the CPCE). The appeal is lodged, investigated and judged in accordance with the summary procedure set out in article 905 of the Code of Civil Procedure.
The appeal does not suspend enforcement, as the judge's decisions are enforceable by operation of law.
Stay of execution
To compensate for the lack of suspensive effect of the appeal, the injured party may apply to the First President of the Court of Appeal for a stay of execution.
According to article R. 121-22 of the CPCE:
- This request suspends the proceedings until the First President's decision.
- The stay is granted only if there are serious grounds for annulment or reversal.
- A manifestly abusive claim may be punished by a civil fine of up to €10,000.
A decision to refuse the stay allows enforcement to continue. Conversely, a stay granted prevents payment until the Court of Appeal has ruled.
Decision of the Court of Appeal
If the Court of Appeal reverses the decision of the enforcement judge, its decision may result in restitution.
Where the garnishee has already paid the distrainor under the reformed decision, the latter will have to repay. The Court of Cassation has specified that "A party who is required to return a sum of money that he or she was holding by virtue of an enforceable decision shall only owe interest at the legal rate from the date of notification of the decision giving rise to the right to restitution. (Cass. 1re civ., 25 Nov. 2003, no. 98-12.734).
The ruling handed down by the Court of Appeal may, of course, be appealed to the Court of Cassation in accordance with the rules of ordinary law.
Sources
- Code des procédures civiles d'exécution: articles L. 111-1 et seq., L. 211-1 to L. 211-5, R. 211-1 to R. 211-23
- Cass. ch. mixte, 22 Nov. 2002, no. 99-13.935
- Cass. 2nd civ. 18 Feb 1985, D. 1985, inf. rap. p. 319
- Cass. opinion, 24 May 1996, no. 09-60.004
- Cass. com. 19 Jan. 1999, no. 96-18.256
- Cass. opinion, 15 June 1998
- Cass. 1st civ., 25 Nov. 2003, no. 98-12.734
- Cour de cassation, Annual Report 2002, p. 337, 427 and 495
- Code of judicial organisation: article L. 213-6
- JurisClasseur Procédure civile, V° Saisie-attribution - Fasc. 10 and 1600-30
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