Have you discovered that your bank account has been seized, your car immobilised as a precautionary measure, or that a judicial mortgage has been placed on your house without you even being informed? This situation can be a source of concern and even a feeling of injustice, especially if you feel that the measure is unfounded or disproportionate.
You are not helpless. While French law allows creditors to protect their rights through these measures, which are often taken by surprise, it also protects the debtor. It provides mechanisms to enable you to challenge a protective measure that you consider inappropriate. The purpose of this article is to explain your rights and the various actions you can take to defend your interests: the right to challenge, the application to have the measure lifted (cancelled), and the possibilities for replacing or reducing the measure.
The right to challenge: an adversarial debate at last possible
As we explained in our article on the procedure, protective measures are often authorised or carried out without the debtor being heard initially, in order to preserve their effectiveness and the element of surprise. However, once the measure has been carried out and you have been informed of it (by service of process by a bailiff or by the bank, for example), the game changes: you have the right to contest it and obtain a adversarial debate before a judge (articles L. 512-1 and R. 512-1 of the Code des procédures civiles d'exécution - CPCE). This is when you can put forward your arguments.
Which judge should I refer to?
Competence depends on how the measure was initiated:
- If the measure has been taken after authorisation by a judge you must apply to the same judge to contest the claim. This will be either the enforcement judge (JEX) of the judicial court or, more rarely, the president of the commercial court if the specific conditions have been met (article R. 512-1 of the CPCE).
- If the measure has been taken without prior authorisation (in one of the cases of exemption provided for in Article L. 511-2 of the CPCE): you must refer the matter to the The enforcement judge (JEX) of your place of residence. If the claim falls under commercial jurisdiction and no legal proceedings are in progress, you can also opt for the President of the Commercial Court of your place of residence (article R. 512-2 of the CPCE).
The burden of proof is reversed!
This is an essential point in the challenge procedure. Whereas in order to obtain the initial authorisation (or to justify acting without authorisation), it was the creditor who had to prove that the conditions had been met, when the debtor contests, the burden of proof always lies with the creditor (article R. 512-1, paragraph 2 of the CPCE). In other words, it is not up to you to prove that the measure is unjustified; it is up to the creditor to convince the judge, this time in the context of an adversarial debate, that his claim appears to be well-founded AND that the circumstances threatening its recovery did exist at the time of the measure (and may still exist). If the creditor fails to do so, the measure must be lifted. Case law is very clear on this reversal (or rather confirmation) of the burden of proof in your favour.
You can initiate this challenge "at any time" while the precautionary measure is in force.
Requesting release: cancelling the measure
The main objective of the challenge is often to obtain the release of the protective measure, i.e. its removal or cancellation. This release may be total (the measure disappears completely) or partial (it is maintained but for a reduced amount or on fewer assets).
You can ask for the measure to be lifted if you consider that the conditions required for the measure were not (or are no longer) met (article L. 512-1 of the CPCE). Here are the main grounds for doing so:
- No claim appears to be well-founded : You can provide evidence that the claim asserted by the creditor is implausible, has been extinguished (already paid), is time-barred, or is the subject of a very serious dispute that the creditor failed to mention.
- Absence (or disappearance) of a threat to recovery : You can demonstrate that there was no real threat to the recovery of the debt at the time the measure was taken, or that the threat has since disappeared. For example: you can prove your solvency (stable income, sufficient assets), you have offered serious payment guarantees that the creditor has refused without legitimate reason, or the situation that justified the creditor's fears has changed for the better. The judge must assess the situation on the day he makes his decision.
- Procedural irregularities : The creditor or the bailiff have not complied with the rules of form or time limits imposed by the CPCE. For example :
- The judge's authorisation had lapsed (measure implemented more than 3 months later).
- You were not notified of the measure (by bailiff) within the legal time limit (often 8 days).
- The writ of seizure or notice of seizure does not contain all the compulsory information (note that you must prove that such omission causes you prejudice - article 114 of the Code of Civil Procedure).
- The creditor has not taken the necessary legal action to obtain a writ of execution within one month of enforcement of the measure (article R. 511-7 of the CPCE).
- The seized property does not belong to you: If the seizure involves movable property that actually belongs to your spouse, flatmate or a third party, they (or you) can apply to have it released by proving ownership.
- No legitimate reason for a waiver of authorisation : If the creditor has acted without authorisation by invoking one of the cases listed in article L. 511-2 of the CPCE (enforceable title, unpaid rent, etc.), you can show that the conditions for this exemption were not met (e.g. the lease was not in writing, the title was not enforceable, etc.).
Consequences of release
If the judge orders the release, the protective measure is cancelled, in whole or in part. In the case of a registered mortgage or pledge, the decision will also order the cancellation of the registration.
Above all, if the measure is released because it was initially unjustified (substantive conditions not met), the creditor may be ordered to pay you compensation. damages to repair the damage caused to you by this measure (article L. 512-2 of the CPCE). This damage may be financial (bank charges following account blocking, inability to carry out a transaction, etc.), but also moral or commercial (damage to your reputation). An important point emphasised by case law is that you do not have to prove that the creditor is at fault in order to obtain this compensation, just that the measure is unjustified and that you have suffered real damage.
Request substitution or reduction: adapt the measure
Sometimes, the protective measure may be justified in principle, but you feel that it is excessive or relates to an asset that you absolutely need. In this case, instead of asking for the measure to be cancelled outright, you can ask for it to be adjusted.
Guarantee substitution
You can ask the judge to replace the initial protective measure with another guarantee, provided that it is sufficient to protect the creditor's interests (article L. 512-1, paragraph 2 of the CPCE). The idea is to provide equivalent security, but at a lower cost to you.
The most effective solution is often to propose a irrevocable bank guarantee for the amount of the secured debt. If you obtain and provide such a guarantee, the law stipulates that this entails release by operation of law of the initial precautionary measure (article L. 512-1, paragraph 3 of the CPCE).
Other substitutions are possible, subject to the judge's discretion (who will also hear the creditor): consigning the sum claimed to a blocked account, proposing a conventional mortgage on another property that is less essential to you, etc. The aim is to free up the property initially targeted while offering the creditor a reliable guarantee.
Reduction (or cantonment)
If you feel that the measure is disproportionate to the amount of the claim, you can ask for it to be reduced.
- For legal security (mortgage, pledge) : If the value of the encumbered assets (the building, the business) is clearly greater than the amount of the secured debt, you can ask the judge to limit the security to only part of these assets. The law is quite demanding: you must prove that the assets that would remain encumbered have a double value of the amount of the secured debt (article R. 532-9 of the CPCE). It's a bit like asking for part of a guarantee deemed excessive to be released.
- For entries :
- For the seizure of receivables (bank accounts), unavailability is already legally limited to the amount claimed (article L. 523-1 CPCE), so the question of confinement is less relevant in these terms, unless the amount initially authorised by the judge was itself excessive.
- If the bailiff has seized goods whose total value far exceeds the debt, you can discuss the matter with the bailiff or take the matter to the court of first instance (JEX) to obtain the release of the surplus goods.
These substitution and reduction options offer welcome flexibility when the precautionary measure, while perhaps justified in principle, proves too cumbersome in practical terms.
If you are the subject of a protective measure and you believe that it is unjustified or excessive, or that it relates to assets that do not belong to you, there are remedies available. The adversarial debate before the judge will allow you to put forward your arguments, and the burden of proof will be on your creditor. Do not hesitate to contact our firm for an analysis of your situation and to discuss the best strategy to adopt to defend your rights.
Sources
- Code of Civil Enforcement Procedures (CPCE)
- Code of Judicial Organisation (COJ)
- Code of civil procedure (C.pr.civ.)
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