Lawyer - Enforcement

Collecting a debt or defending against an enforcement order can quickly become complex. Whether you are creditor seeking to recover what is owed to you, or debtor When faced with a seizure procedure threatening wages or property, the intervention of an enforcement lawyer is crucial. Our law firm offers you cutting-edge expertise and personalised legal representation to defend your interests and protect your assets.

The role of our enforcement law firm

Our law firm, experts in enforcement and debt recovery, works with all types of client, whether creditor or debtor. Our legal expertise and our knowledge of the law on civil enforcement procedures and the Code of Civil Procedures enable us to offer you comprehensive support. This service includes :

• In-depth analysis of your situation and definition of a clear and appropriate legal and procedural strategy.

• Assistance in obtaining enforceable titles, including summary proceedings if necessary.

• Drawing up all the necessary documents (summonses, submissions, applications) and representing you legally before the enforcement judge (JEX) (to bring a case before the JEX or to defend yourself), as well as before the other competent courts such as the commercial court or the judicial court. An appeal to the Court of Cassation may also be considered.

• Negotiating with the opposing party to find amicable and pragmatic solutions, with the aim of reaching a satisfactory agreement or settlement.

• Implementing and monitoring the various enforcement measures (seizure of movable property, seizure of immovable property, protective measures, apprehension, allocation, sale, attachment of earnings).

• Specific support for the more technical issues relating to civil enforcement procedures, such as international debt recovery (for example, the implementation of a European enforcement order), the management of conflicts between creditors' rights, or the coordination of enforcement procedures with collective procedures (safeguarding, reorganisation or judicial liquidation of a company) and over-indebtedness of individuals. Our relationship with our clients is based on trust and transparency. We can also act in disputes involving social security bodies or the securitisation of receivables. Security law is an essential tool in this area.

For an assessment of your situation in terms of enforcement law or debt recovery, and to discuss the action to be taken, contact our firm.

Understanding enforcement: a technical field

Enforcement procedures, or civil enforcement procedures, governed by the Code of Civil Enforcement Procedures and the Code of Civil Procedure, are the procedures required to obtain forced performance of an obligation, often a payment. 

At the heart of these procedures is the writ of execution. Without this document, no coercive measures are possible, except as a precautionary measure.

The enforcement judge (JEX) is the judge who supervises these procedures. The judicial commissioner (formerly a bailiff) is the person in charge of seizures in the field.

Creditor: securing the recovery of your debt

If a debtor does not pay his debt voluntarily, a lawyer can help you choose the best strategy to force him to pay.

1. Obtain a writ of execution

This is an essential step if amicable collection of your debt has failed. This document, which officially establishes your claim and orders the debtor to pay, is the sine qua non for considering compulsory enforcement measures. It is often necessary to take legal action to obtain it, either by applying for an injunction to pay for claims that are not seriously disputable, or by a writ of summons for more complex disputes.

2. Implementing enforcement measures

Once you have an enforcement order, there are a number of enforcement measures you can take to force your debtor to pay. Our firm can help you choose the most effective and most appropriate for your situation:

• Seizure allocation : allows you to seize sums of money that your debtor holds with a third party, typically his bank. The funds available in the debtor's bank accounts can be seized to pay you. It can also be used to seize successively enforceable debts, such as rent owed to your debtor.

• Seizure and sale of movable property : consists of having the movable (tangible) property belonging to your debtor sold (e.g. vehicle, stocks of goods, business equipment, valuable furniture) so that you can be paid from the sale price. The seizure of a land-based motor vehicle has some special features, such as the possibility of a declaration to the prefecture, which blocks the registration certificate, or a physical immobilisation. A request for authorisation may be required.

• Seizure of partners' rights and securities : if your debtor holds shares in a company, these intangible assets can be seized and sold.

• Seizure of property : This is a heavier and more complex procedure, involving the forced sale of a property (flat, house, land) belonging to your debtor. It begins with the service of a summons to pay equivalent to a seizure and continues before the enforcement judge (JEX), notably at a decisive orientation hearing that will decide on the amicable sale or the forced sale by auction.

• Seizure of ships, boats and aircraft : these valuable assets are subject to very specific rules of execution.

3. Anticipating insolvency: precautionary measures

If you are concerned that your debtor is organising his insolvency before you have even been able to obtain a judgement, a protective measure may be necessary. This makes it possible to "freeze" certain assets or debts owed by your debtor while you wait to obtain a writ of execution. This may involve the seizure of bank accounts or movable property, or the registration of a provisional legal security (such as a mortgage) on one of the debtor's properties, offering a guarantee of payment.

These measures generally require a request for authorisation from the judge, sometimes in summary proceedings, except in certain specific cases where you already have evidence (for example, an unpaid cheque). 

Anticipation is often the key to debt protection. If your debtor appears to be organising his insolvency or transferring his assets, it may be time to take legal action. Our team of experts in security law can work with you to analyse the advisability of applying for precautionary measures to protect your interests.

4. Managing incidents

The collection process can run into a number of problems:

• Death of the debtor: recovery must then be directed against the heirs, which means identifying them and complying with specific formalities.

• Debtor's collective proceedings: if your debtor (company or individual) is the subject of safeguard, recovery or judicial liquidation proceedings, you must declare your claim within the deadlines if you hope to be paid and defend your rights as a creditor against other creditors.

• Seizure for counterfeiting: if your loss results from acts of counterfeiting, a specific seizure procedure can be initiated to gather the necessary evidence before a trial on the merits.

• Astreinte (fine): when a court order imposes an obligation to do something (or not to do something) that is not complied with, the court may impose an astreinte (fine), i.e. an order to pay a sum of money for each day of delay, to encourage the debtor to comply. A relationship of trust with your legal advisor is therefore essential.

Debtors: know your rights and defend yourself

Facing an enforcement order is an ordeal. However, you have rights and means of defence to deal with proceedings that you feel are unjustified or disproportionate. A lawyer is essential to guide you.

1. Challenging an enforcement order

Several arguments can be raised to contest a seizure. Each claim must be carefully substantiated, sometimes by legal action:

• The validity of the writ of execution: is the writ on which the seizure is based still valid? Is it not time-barred? Does it contain all the compulsory information required by an article of the applicable code?

• The claim itself: is the amount claimed correct? Is the claim really due and payable? Are there any interests that are time-barred? In-depth research is required, sometimes in public law if the creditor is a public authority.

• Unenforceability of unfair terms: even if a court decision exists, it is sometimes possible to raise the unfairness of a term in the initial contract at the performance stage if the first judge was unable to examine it.

• Procedural defects in the seizure: were the deadlines respected? Were you properly informed? Doesn't the seizure involve property (including the place where the debtor lives) that has been declared unseizable by law? The attachment of wages is governed by its own rules.

• Abuse of seizure: a measure may be deemed abusive if it is disproportionate to the debt, or if the creditor uses it in a vexatious manner, particularly for very small debts when other, less costly solutions exist. It is then possible to refer the matter to the JEX. The JEX's decision may order the debt to be discharged.

2. Specific protection

As a debtor, you have specific protection against certain types of seizure. It's vital to be aware of them if you are to defend your rights effectively:

• There are several options available to you in the event of the seizure of your residential property: applying to the execution judge for an out-of-court sale, contesting the upset price, exempting your principal residence from seizure (subject to certain conditions for sole traders), or using the over-indebtedness procedure, which can suspend seizures and lead to conciliation. Eviction from the dwelling remains a serious measure, often monitored by the social services.

• In the event of your bank accounts being seized, it is essential that you are left with the SBI (Solde Bancaire Insaisissable), which is equivalent to the RSA for a single person.

• Certain movable property deemed essential to your daily life and work is declared exempt from seizure. Apprehension is a procedure aimed at recovering a specific tangible asset. Deferment of payment may also be requested from the JEX.

3. Rights in the event of a guarantee

If you have stood surety for a third party and the creditor turns against you, specific defences may be available. The creditor has information obligations towards you (annual information on the debt, information in the event of a payment incident by the principal debtor).

Depending on the nature of your commitment (simple or joint and several surety), you may benefit from the benefit of discussion (obliging the creditor to sue the principal debtor first) or the benefit of division (if there are several sureties). This is an important aspect of security law. Finally, if your commitment was manifestly disproportionate to your income and assets at the time of signing, its validity or scope could be called into question, affecting the guarantee.

Does an enforcement order seem unjustified or irregular to you, or are the consequences too serious? Don't wait to take action. Our firm is here to help you analyse your situation and define the best defence strategy.