Receiving a letter from a judicial commissioner (formerly a bailiff) and not being able to pay the sum claimed is a frightening situation. However, ignoring the problem is the worst strategy for avoiding more serious consequences. There are practical solutions for dealing with the situation, negotiating and, if necessary, disputing the debt. The key is to react quickly and in an informed manner. Our firm will guide you through the steps and remedies to effectively defend your rights.
I. Understanding the role of the judicial commissioner (former bailiff)
The judicial commissioner is a public and ministerial officer. This status gives him a monopoly on the enforcement of court decisions, which fundamentally distinguishes him from a simple debt collection agency. His role is to obtain payment of a debt by acting as an intermediary between the creditor and the debtor.
What is its role and powers?
The role of the judicial representative varies according to the phase of the debt collection procedure. He can act amicably to reach an agreement, but he is best known for his powers of enforcement. Once he is in possession of a writ of execution, he can take coercive action to recover the debt. Among his prerogatives, he can seize your bank accounts, garnish your wages or seize your personal property in your home.
When does it intervene: the out-of-court phase vs. the court phase
The intervention of the judicial commissioner takes place in two stages. The out-of-court collection phase takes place before any legal decision is taken. The creditor mandates him to try to obtain voluntary payment. At this stage, the judicial commissioner will send you a letter, a summons to pay, and may propose an arrangement or a payment schedule. No seizure can be initiated without obtaining a writ of execution.
If the amicable phase fails, or if the creditor already has a court order, legal proceedings become effective. Armed with a writ of execution (a judgement or an order to pay, for example), the court commissioner can then force the debtor to pay by means of forced execution. The law does not set no minimum amount for a bailiff to interveneIn practice, however, small claims are rarely pursued in this way because of the procedural costs, which are often higher than the amount of the claim itself. Its intervention is governed by a tariff that may include a proportional recovery fee, the rate of which is set by decree.
II. The key role of the garnishee (bank, employer): your rights and obligations
When your income or bank account is seized, a key player comes into play: the garnishee. This is the person or entity that holds the funds on your behalf, usually your bank or employer. Understanding your debtor's obligations is a lever for defending yourself, and an opportunity for action that is often overlooked by the debtor.
Who is the garnishee and what are their reporting obligations?
The garnishee is the debtor of your debtor. When a court commissioner seizes your account, the bank becomes the garnishee. For an attachment of wages, it is your employer. The law imposes a strict and immediate obligation to inform them. Under article L. 211-3 of the Code of Civil Enforcement Procedure (CPCE), the garnishee must declare "immediately" to the court commissioner the extent of its obligations towards you. In particular, he must specify the balance of your accounts or the nature of your employment contract and indicate whether other seizures are already in progress. A late or inaccurate declaration, or a refusal to declare, exposes the garnishee to sanctions, which may go as far as ordering him to pay the debt himself in your place.
What happens if the garnishee refuses to pay?
If the garnishee, after acknowledging that he has funds belonging to you, refuses to pay them to the creditor, the situation becomes more complex. The creditor can then refer the matter to the enforcement judge (JEX) to settle the dispute. In accordance with article R. 211-9 of the CPCE, if the judge finds that the garnishee's refusal is unjustified, he can issue an enforcement order directly against the garnishee. This means that the creditor can then initiate seizure measures not against you, but directly against your bank or your defaulting employer. It is in your best interests that this procedure is followed.
III. Check the legitimacy of the debt before paying
Before considering any form of payment, it is essential to carry out a rigorous audit of the debt claimed. A debt may be illegitimate for a number of reasons: it may be time-barred, the writ of execution may be invalid, or the amount may be disputable. The first thing to check is the nature of the document received: is it a simple reminder letter or a document with legal force?
Limitation periods: a weapon for debtors
A creditor cannot act indefinitely. Once a certain period has elapsed, a debt is "time-barred": it still exists, but can no longer be enforced through the courts. The question of limitation periods for claims is therefore a priority. The main deadlines are :
- 5 years for civil and commercial claims (unpaid invoices, etc.) (art. 2224 of the Civil Code).
- 2 years for consumer credit (art. L. 218-2 C. conso), which often carries a high interest rate.
- 3 years for unpaid rent and service charges (art. 7-1 of the law of 6 July 1989).
Interruption and suspension: the subtleties that restart the counter
Please note that the statute of limitations does not always run in a straight line. To avoid errors, a distinction must be made between two mechanisms:
- The interruption : certain acts cancel the period that has already elapsed and start a new period for the same length of time. Legal action, enforcement measures or even an acknowledgement of debt on your part (for example, by agreeing to a payment schedule) interrupt the limitation period.
- Suspension: it pauses the countdown, without deleting the time that has already elapsed. Once the obstacle has disappeared, the time starts running again from where it left off (for example, the time taken for a mediation).
A simple registered letter of formal notice, even if it has legal force, does not interrupt the statute of limitations. Only specific legal acts, such as a court summons or an order for payment, have this effect.
Is the writ of execution valid?
To carry out a seizure, the judicial representative must hold an enforceable title. The list of these instruments is set out in article L. 111-3 of the CPCE (judgement, notarised deed with enforcement clause, etc.). It is crucial to check several points:
- The executory clause : The document must include the words "Consequently, the French Republic directs and orders...".
- Significance: Have you been properly notified of the judgment or document? Improper service can vitiate the entire enforcement procedure.
- The date : A writ of execution issued by a court is time-barred after 10 years.
Don't hesitate to ask for a copy of the writ of execution on which the proceedings are based so that you can examine it carefully, ideally in consultation with a lawyer.
IV. Negotiating with the judicial representative: amicable solutions
If the debt is legitimate but your financial situation prevents you from paying it in full, negotiation is the first route to explore. A court commissioner will often prefer an amicable agreement to a long and costly seizure procedure. The aim is to avoid going to court.
Propose a realistic payment plan
The key to successful negotiations is to present a serious, well-documented proposal. Before contacting the study, prepare a detailed budget of your income and incompressible expenses to determine your monthly repayment capacity. Contact negotiate a debt repayment scheduleIf you have to pay, your proposal must be realistic. You can negotiate not only a payment schedule, but also a discount on penalties or the interest rate for late payment. Offering an initial payment, even a small one, is a much appreciated sign of good faith and willingness. Put your proposal in writing, enclosing proof of your situation.
Asking the judge for a period of grace
If negotiations with the bankruptcy commissioner or the creditor fail, you are not at a disadvantage. You can go to court to obtain a deferment of payment. Article 1343-5 of the Civil Code allows the judge to defer or stagger payment of the sums due, up to a maximum of 24 months. This request should be made to the enforcement judge (JEX) if the creditor already has a writ of execution. The judge may grant these deferments depending on your financial situation and your good faith, if you show a genuine desire to settle the debt.
V. Over-indebtedness proceedings: the last-chance solution
When the debts are too numerous or too large to be settled simply by instalments, the over-indebtedness procedure is a structured and protective solution for individuals. It is invaluable in the event of long-term financial incapacity.
Who can apply and for what debts?
This procedure is open to any natural person of good faith, domiciled in France, who finds it "manifestly impossible to meet all his non-business debts that are due and payable" (art. L. 711-1 C. conso). This covers most everyday debts: consumer credit, home loans, bank overdrafts, rent, service charges, tax, etc. However, it does not cover business debts, maintenance payments or criminal fines.
How does the procedure work with the Banque de France?
The debtor must compile a complete file and submit it to the secretariat of the over-indebtedness commission, located on the premises of the Banque de France. The commission first examines whether the application is admissible. If the application is deemed admissible, the commission examines the case, draws up a statement of liabilities, assesses the debt ratio and directs the case towards the most appropriate solution: a conventional recovery plan (negotiated with the creditors), imposed measures (if negotiation fails), or a personal recovery procedure with or without judicial liquidation for the most critical incapacity situations.
What are the consequences of an admissible application?
The decision to accept the case has immediate and significant protective effects. Article L. 722-2 of the Consumer Code provides for the possibility of automatically suspending enforcement procedures (seizures) for a maximum of two years. The debtor is also prohibited from paying debts incurred prior to the decision (except maintenance debts) and from taking out new loans. In return for this protection, the debtor is registered in the Fichier des incidents de remboursement des crédits aux particuliers (FICP).
VI. Seizures and appeals: how to react and defend yourself?
When the amicable phase has failed and enforcement action is taken, there are specific remedies available to contest the procedure and assert your rights in court. You must not remain passive.
Bringing a case before the enforcement judge (JEX): when and why?
The Enforcement Judge (JEX), who sits on the Court of First Instance, is the judge responsible for settling all difficulties relating to enforceable titles and disputes arising during enforcement (art. L. 213-6 of the Code of Judicial Organisation). You can apply to him to contesting a seizure You can also challenge the validity of the document on which the proceedings are based or the amount of the debt, for example by disputing the interest rate applied.
Challenging an attachment order: the creditor's fault can save you
Attachment of a bank account has an immediate attributive effect: as soon as the attachment is made, the available sums are transferred to the creditor. However, actual payment is deferred. During this period, the creditor must be diligent. Article R. 211-8 of the CPCE provides for a formidable penalty: if the failure of the garnishee (the bank) to pay is attributable to the creditor's negligence, the creditor loses his rights against the debtor for the sums due. If your creditor, after initiating the seizure, remains inactive, does not claim the funds from the bank and does not take any action to obtain payment, you could invoke his negligence to obtain the release of the seizure and be discharged of the object of the claim.
The specific case of unpaid cheques: from certificates of non-payment to bank bans
An unpaid cheque can quickly become a writ of execution. If a cheque remains unpaid after a second presentation or after 30 days, the beneficiary can ask his bank for a certificate of non-payment. Once served by a bailiff, this certificate is equivalent to a summons to pay and allows the money to be seized without having to go through conventional legal proceedings to get it back. If you fail to pay, you will also be registered in the Fichier Central des Chèques (FCC) and banned from issuing cheques on all your accounts.
VII. Looking ahead: recent and forthcoming reforms to protect you
Enforcement and guarantee law is constantly evolving. Knowing the latest reforms is a strategic asset in defending yourself more effectively, particularly in the area of surety bonds.
Impact of the reform of security law (2021) on individual guarantors
The Order of 15 September 2021 strengthened the protection of individuals who act as guarantors. Two new provisions of the Civil Code are essential:
- The duty to warn (art. 2299 C. civ.) : A professional creditor must now warn the guarantor if the principal debtor's commitment is unsuited to his financial capabilities at the time the contract is signed. If they fail to do so, the creditor may be deprived of its right of recovery against the guarantor, for example to the extent of the loss of chance suffered.
- Penalty for disproportion (art. 2300 C. civ.) : If the guarantor's commitment was, at the time it was entered into, manifestly disproportionate to his income and assets (making him unable to pay), it is no longer null and void but reduced to the amount he could reasonably guarantee.
These new rules provide more effective defences for guarantors facing prosecution.
Attachment of remuneration: towards a transfer of jurisdiction to the judicial commissioner in 2025
A major reform stemming from the law of 20 November 2023, the implementing decrees for which are expected during 2024, will modify the procedure for seizing wages by 1 July 2025 at the latest. Currently carried out by a judge, this procedure will be "dijudiciarised" and entrusted to judicial commissioners. They will set up the attachment with the employer and manage the distribution of the funds. The enforcement judge will only intervene in the event of a dispute via a petition. The aim of this change is to speed up debt collection, but debtors will have to be even more vigilant to ensure that their rights are upheld.
VIII. Need an immediate solution? Contact our firm
Managing a debt and dealing with a court-appointed commissioner are complex ordeals that require specialised legal expertise. An in-depth analysis of your situation, verification of the legitimacy of the debt, negotiation of a remission or payment plan, or challenging a wrongful seizure are all steps where the assistance of a specialist lawyer is crucial. To obtain help and a concrete response, and to effectively defend your rights, contact our firm for personalised support and to consult an expert in the field.
Sources
- Code of civil enforcement procedures
- Consumer Code
- Civil Code
- Commercial code
- Monetary and Financial Code
- French Labour Code
- Code of judicial organisation
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