Opposing a seizure of property is not easy. There are several ways for debtors to prevent such a procedure from being implemented. We are not talking here about solutions that make it possible to stop the seizure once it has begun. We're talking about those that prevent the company from being involved.
Understanding creditor constraints
Foreclosures can be carried out by any type of creditor. However, their constraints are very different. This can lead them to initiate seizure proceedings at different stages of their recovery process.
The syndicate of co-owners
The co-owners' association can initiate a property seizure procedure to recover unpaid co-ownership charges. When the building has been financed by a bank, the bank often takes out a mortgage. Where this is the case, the sale of the building will result in the loan lapsing.
The bank will then claim payment of its debt, and its mortgage will enable it to be paid before the syndicate of co-owners. If the bank's claim exceeds the value of the building, the sale of the building will not enable the syndicate to be paid in full.
In this case, the syndicat des copropriétaires will be able to assert its lien. It has the right to be paid certain sums in respect of the last four years in arrears.
The effect of the bank's presence is therefore to limit the co-owners' association's recovery options. The debtor will therefore have to make a calculation if he has to choose between several creditors to pay.
This is because the threshold beyond which each of them considers seizure necessary will not be the same. In this example, the syndicate of co-owners might, for example, tend to prioritise other solutions.
This is all the more true as the seizure of property can be deemed abusive when it relates to a small claim. The criteria for abuse include the existence of alternatives to seizure and its futility.
It is therefore essential to assess the capacity of the syndicate of co-owners to be paid.
The bank
The bank can find itself in two situations.
Your loan may be guaranteed by a surety organisation. If the loan is not paid, the guarantor will pay the bank. Following this payment, it will summon the debtor to appear before the court. This will enable the debtor to be ordered to pay the sums due.
This preliminary stage means that it will take months or even years before the seizure of the property can be initiated. However, the debtor's resistance will have a cost: interest on arrears, which will accumulate.
The bank's loan can also be recorded in a notarial deed. In this case, the bank can foreclose on the property without going to court first.
These subtleties, relating to enforceable titles, are analysed in our dedicated publication.
The seizure of the property will therefore be carried out much more quickly. This speed is all the more necessary for the bank as its action will be subject to a limitation period of 2 years.
However, before initiating a seizure, the bank must try to remedy the situation. This recently introduced measure requires banks to try to find amicable solutions. The measures envisaged are described at Article L. 313-49-1 of the French Consumer Code.
How can I oppose a property seizure?
Referring your case to the debt commission
For the over-indebted debtorsIf you are in debt, you can apply to the debt commission. The commission's decision to accept the case means that creditors are prohibited from taking enforcement action. Seizures are therefore impossible, including the seizure of property.
However, the commission will tend to set up a 2-year moratorium, with an interest freeze. In return, it will ask the debtor to sell his property. If the debtor has debts and assets, then the assets must be liquidated in order to pay the debts.
Negotiating with the creditor
Direct negotiation with the creditor is often an effective way of avoiding seizure of the property. The syndicate of co-owners will be inclined to accept an amicable solution, as seizure of the property is a costly procedure.
As for the bank, recognition of its debts by the debtor interrupts the limitation period. It will therefore be released from its own time constraints. It will therefore be able to deal with the case in good conditions.
It is in the debtor's interest to propose a repayment plan.
In this respect, it should be borne in mind that the creditor will be able to impose the application of the wage attachment scale if he initiates proceedings. An amicable solution will enable him to avoid these proceedings, which is positive. If the proposal is too low, however, the creditor may choose to go to court to have the scale applied.
This is an important parameter in the discussions, as it forms the basis for assessing the seriousness of amicable offers.
Avoiding common mistakes
To maximise your chances of success, it is crucial to avoid certain common mistakes:
- Ignore notifications Failure to respond to notices from the bailiff or the court can have dramatic consequences.
- Lack of preparation It would be a serious mistake not to carefully prepare the amicable proposals that will be made.
- Lack of legal assistance The advice and expertise of a lawyer is recommended if the issue at stake warrants it.
Conclusion
Debtors often find it difficult to face up to their money problems and, above all, to take responsibility for them. This leads many of our clients to wait until proceedings have been initiated before contacting us. However, a good understanding of the mechanisms involved in the procedure means that many things can be anticipated. Those who know how to anticipate also know how to organise themselves effectively.
Its objectives are twofold: to avoid seizure and to pay under painless conditions. However, the techniques that need to be implemented often require the involvement of a lawyer.
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