Lawyer - Seizure of property

Attachment is a formidable legal procedure, whether you are seeking to initiate it in order to recover a sum owed or are subject to it as a debtor. Its main effect is to allow a creditor, armed with a writ of execution, to directly seize sums of money held by a third party (often a bank) on behalf of the debtor. Solent Avocats, a firm of lawyers in Marseille specialising in commercial law, insolvency proceedings and enforcement procedures, offers tailor-made support to help you manoeuvre through the intricacies of this civil enforcement procedure. Implementing such a measure requires specialist expertise to avoid any damaging consequences.

Our firm puts its expertise at your service, whether you are a creditor wishing to seize and secure the recovery of your unpaid debts, or a debtor seeking to verify the legality of a seizure and defend your rights. We are convinced that a pragmatic approach, sometimes based on the search for a negotiated solution, may prove preferable to a lengthy trial, even within the restrictive framework of enforcement procedures. 

On the strength of our recognised experience in these areas, including the QUALIOPI-certified training courses we provide, we believe that knowledge should be accessible.

Understanding seizure of assets: a direct recovery tool

Attachment is a compulsory enforcement procedure governed by the Code of Civil Enforcement Procedures, which enables a creditor (the distrainor), who has a writ of execution recording a liquid and due debt, to immediately obtain sums of money belonging to his debtor (the distrainee) but held by a third party (the garnishee). The garnishee is most often a bank, but it can be any person or entity owing a sum of money to the debtor. The object of the seizure is therefore the debt owed by the debtor to the third party.

The main players are :

• The seizing creditor: the person to whom the money is owed.
• The seized debtor: the person who owes the money, often following a decision ordering them to pay.
• The garnishee: the person who holds funds on behalf of the debtor (for example, the debtor's bank).

The major and immediate effect of this procedure is the attributive effect: the allocation of the sums seized to the creditor. This means that, from the time of the bailiff's writ (served by a court commissioner), the debtor loses control of the funds up to the amount owed to the creditor, and these funds are allocated to payment of the creditor, subject to any disputes.

Our firm can help you to determine whether attachment for payment is the most effective and appropriate way of recovering your debt, or to understand your obligations and rights if you are the garnishee or the debtor facing such a measure. A request for an analysis of your case will help clarify the best strategy.

The essential conditions for initiating or undergoing an attachment order

For an attachment order to be valid and properly executed, or for a debtor to be able to assess its legitimacy, a number of conditions must be met. Failure to comply with these conditions may result in the attachment being declared null and void and released.

On the seizing creditor's side, it is essential to :

• An enforceable title. This may be, for example, a final or provisionally enforceable judgement, an appeal judgment, or a notarised deed bearing the executory clause. This document establishes the debtor's obligation to pay.
• Proof of a claim that is certain, liquid and due. A claim is certain when its existence is indisputable. It is liquid when its amount is determined or can be determined by simple assessment. It is due and payable when the term for its payment has expired and no deferred payment has been granted or is in progress.

On the seized debtor's side, the seizure presupposes :

• The existence of a debt to the distraining creditor, recorded in the writ of execution.
• The holding by a third party of a claim to a sum of money belonging to it (for example, a credit balance on the debtor's bank account, rent owed by a tenant, etc.).

Before any legal action is taken or a seizure implemented, or as soon as you receive a seizure deed, it is essential to check that these conditions have been met. We carry out this examination to defend your interests to the best of our ability, whether you initiate the measure or are subject to it. Each party involved must know their rights.

3 points to check immediately if you receive a garnishee notice

1. The writ of execution: Check the nature of the document referred to as the writ of execution in the writ of attachment. Is it one of the documents recognised by the law as permitting enforcement? Is the date consistent?
2. The amount claimed: Does the amount claimed correspond precisely to what you still owe, taking into account any payments already made or any remissions granted?
3. The notification procedure: Has the seizure deed been correctly notified to you by a court commissioner within the legal time limit (in principle, 8 days after the seizure in the hands of the third party)? Failure to do so may vitiate the procedure.

These initial checks are important.

The attachment procedure step by step

The seizure of assets procedure follows a precise set of formalities, compliance with which determines its validity. Each stage is set out in the Code of Civil Enforcement Procedures.

1. The writ of attachment (or procès-verbal de saisie) : the legal procedure begins with the service of a writ of attachment by a judicial commissioner (formerly a bailiff) directly on the garnishee (for example, the bank). This bailiff's deed immediately makes the debtor's claim unavailable up to the amount owed to the creditor. The garnishee must immediately declare the extent of its obligations towards the debtor to the court commissioner. The document must be delivered in accordance with the rules governing service.
2. Obligations of the garnishee : on receipt of the deed of attachment, the garnishee must provide the court-appointed agent with all information and supporting documents relating to the extent of his obligation to the distrainee debtor. In particular, he must declare the balance of the debtor's account(s) on the day of the seizure. The debtor is given a deadline for providing certain additional information.
3. Notice to the debtor : within eight days of service of the seizure deed on the third party, the creditor must notify the seized debtor of the seizure, also by a court officer. This notice of seizure must contain certain mandatory information, failing which it will be null and void, in particular that the debtor has a period of one month in which to contest the seizure. A copy of the attachment deed is usually attached. If the procedure is not followed at this stage, the seizure may lapse.
4. Payment: if the debtor does not contest the seizure within 1 month (or if his challenge to the seizure is rejected), the creditor may request payment of the sums seized from the garnishee. This payment is made on presentation of a certificate of non-contestation issued by the registry of the enforcement judge or of the court decision rejecting the contestation. The creditor may then dispose of the funds.

Attachment to a bank account: what you need to know

When an attachment order relates to a debtor's bank account (commonly referred to as a bank account attachment), special rules of the Code of Civil Enforcement Procedures apply, in particular to protect the account holder.

• Account blocking : the seizure results in the unavailability of all the debtor's deposit and current accounts held with the seizing third party bank, for the amount claimed. The bank is required to declare the balance of each account on the day of the seizure.
• Calculation of the balance subject to seizure : the bank has a period of fifteen working days after the seizure to calculate the balance actually available and subject to seizure. This calculation takes into account any outstanding credit or debit transactions at the time of the seizure, according to complex rules (for example, cheques cashed before the seizure, card payments or cheques issued before the seizure but not yet debited).
• Elusive Bank Balance (EBS) : Regardless of their situation, individual debtors are entitled to keep a sum of money for maintenance purposes, known as the "Solde Bancaire Insaisissable" (unseizable bank balance). This amount is equal to the flat-rate amount of the Revenu de Solidarité Active (RSA) for a single person. The bank must make this sum available to the debtor, without the latter having to take any particular action, unless the account balance is less than the SBI. It should be noted that this amount is set by regulation.
• Unseizable claims (or unseizable income) : certain sums paid into a bank account are inherently exempt from seizure (e.g. family benefits, maintenance payments, certain unemployment or sickness benefits). The debtor must justify the origin of these sums to the bank in order to have them made available. There are bank accounts that cannot be seized in their entirety, but this is rarer; the principle is that the sums can be seized, barring exceptions.

The seizure of a sum from a bank account has a particularly serious impact. We act on behalf of creditors to secure recovery, and on behalf of debtors to assert their rights, particularly with regard to the SBI and unattachable debts. If the bank breaches a rule, it may incur liability.

Challenging an attachment order: grounds and procedure

The seized debtor, but also in some cases the seized creditor or third party, can contest a seizure. The challenge procedure is a genuine legal action.

• Who can contest? Primarily the debtor, if he considers that the seizure is irregular or unfounded (for example, in the case of manifest abuse). The creditor may contest the garnishee's declaration if he considers it inaccurate or incomplete.
• Before which judge? Disputes relating to an attachment for payment fall within the exclusive jurisdiction of the Juge de l'Exécution (JEX), who is a judge of the judicial court. The French judicial system entrusts this specific type of dispute to this judge. The claim must be brought before the judge in the place where the debtor lives.
• How soon? Under penalty of inadmissibility, the debtor has a period of one month from the date of notification of the seizure in which to lodge a dispute. This is a valid and strict time limit. Other specific time limits may apply for certain disputes. It is generally not possible to obtain a request for additional time to act.
• Main grounds for complaint : a ground for objection may relate to :
  • The absence, nullity or lapse of the writ of execution on which the seizure is based.
  • The claim does not exist, is not liquid or due, or has been extinguished (for example, by previous payment or reimbursement).
  • Irregularities in the attachment procedure (failure to comply with the compulsory information in the attachment deed or notice of attachment, failure to comply with the procedure concerning time limits). The reason for the dispute must be clearly stated.
  • Property or sums may not be seized.
  • The unseizability of certain specific claims (alimony, social security benefits, etc.).
• How do I apply to the enforcement judge? The challenge is made by writ of summons. A summons for the purpose of releasing the seizure is often the objective. The aim of the release procedure is to have the judge issue a release order.

Challenges must be well-founded in fact and law, and comply with strict deadlines and formalities.

The role of Solent Avocats in seizure of assets in Marseille

Our Marseille office, Solent Avocats, has developed a recognised practice in enforcement procedures, particularly in the management of attachment proceedings. Our in-depth knowledge of the applicable legislation and our litigation experience enable us to provide effective, tailored support.

For creditors :

• We can advise you on whether to resort to seizure of assets and on the most appropriate collection strategy for paying your debt.
• We implement and monitor the civil enforcement procedure in collaboration with the judicial commissioners, ensuring that it is regular and effective.
• We can help you if the debtor contests the seizure or if the garnishee raises difficulties.

For debtors :

• We analyse the validity of the attachment order issued against you, including any failure to comply with the legal procedure.
• We can help you assert your rights, in particular with regard to bank balances that cannot be seized, the protection of claims for maintenance or social benefits, or in the event of wrongful seizure.
• We draw up and support challenges before the JEX, for example by means of a petition or writ of summons, when the seizure appears unfounded or irregular, with the aim of obtaining its total or partial release.

For third parties (banks, companies) :

• We advise them on the extent of their reporting and payment obligations, in order to secure their position and avoid liability. Garnishees have limited powers but strict obligations.

Our approach is based on a precise analysis of each situation and the search for pragmatic solutions, always respecting ethical rules and the interests of our clients.