Attachment is a formidable enforcement procedure that enables creditors to recover sums owed to them. However, this measure, which can have a considerable financial impact, is not infallible and can be contested by the debtor if it seems unjustified or irregular. Before going into the subtleties of contesting a debt, it is essential to understand the following the attachment mechanismThis is an enforcement procedure with immediate and often significant consequences for the debtor. This article provides an in-depth analysis of the rules governing jurisdiction, time limits, formalities and remedies for contesting an attachment for payment, in order to maximise the chances of success.
The enforcement judge (jex): jurisdiction and powers when contesting an attachment for payment
The enforcement judge (JEX), who sits in the judicial court, has exclusive jurisdiction to contest an attachment for payment. This specialised court is the only one empowered to rule on disputes arising from enforcement. It is vital to clearly define the scope of its powers and the limits of its intervention, particularly in relation to the enforcement order on which the attachment is based.
Delimitation of the material and territorial jurisdiction of the jex
The jurisdiction of the enforcement judge is a matter of public policy, which means that no contractual clause can derogate from it. On a substantive level, article L. 213-6 of the Code of Judicial Organisation confers exclusive jurisdiction on the enforcement court to hear disputes relating to enforceable titles and disputes arising in connection with enforcement.
In territorial terms, article R. 211-10 of the Code of Civil Enforcement Procedures is clear: the court with jurisdiction is the one for the place where the debtor lives. This rule is designed to protect debtors by enabling them to defend themselves before a court close to their place of residence. There are exceptions, particularly if the debtor lives abroad or if his domicile is unknown. In this situation, jurisdiction is assigned to the court in the place where the measure is enforced, which is most often the place of residence of the garnishee. It is interesting to note that the jurisdiction of the Enforcement Judge is also central to other procedures such as the seizure of property and the seizure of goods for sale, making it a key player in enforcement law.
The powers of the jex in relation to the writ of execution: validation and limits
The role of the enforcement judge is very subtle. His task is to ensure that the enforcement procedure is in order, but under no circumstances can he call into question the substance of the right established by the writ of execution, which has the force of res judicata. Its role focuses on verifying the existence of an enforcement order recording a claim that is due and payable. It may therefore examine the formal legality of the instrument, such as the presence of the enforcement formula on a notarial deed, or ensure that the judgment serving as the basis for the proceedings has been properly notified.
However, the principle of the enforceable title's inviolability prohibits him from amending the terms of the judgment. He may not, for example, reassess the amount of the judgment. Although he can interpret a judgment to clarify its scope, he must never distort its meaning. His intervention is therefore strictly confined to monitoring the enforcement procedure itself, ensuring a balance between the creditor's ability to recover his money and the protection of the debtor's rights.
Those involved in the challenge: interest in bringing proceedings and the role of the parties
Attachment proceedings involve three main parties: the distraining creditor, the distrained debtor and the garnishee, which is often a bank. However, other people, known as "interested third parties", may also be involved in the dispute if they can demonstrate an interest in taking legal action. Once the interests of the various parties have been established, the defence strategy is based on substantive arguments to contesting an attachment orderThese include the extinction of the debt or the unseizability of the sums in the account.
The debtor is naturally the first to be affected and has every interest in contesting a seizure that he considers irregular or unfounded. The creditor, for his part, will defend the validity of his measure. The garnishee may also have an interest in taking action, for example to contest the extent of its obligations or the very existence of its debt to the debtor. Lastly, other creditors of the debtor may intervene voluntarily in the proceedings if they believe that the seizure is prejudicial to their own rights, particularly in cases of suspected fraud where a sufficient link with the original claim can be established.
Time limits and formalities for challenges: guaranteeing procedural regularity
There are strict deadlines and formalities for contesting a seizure of assets, and failure to comply with them can result in severe penalties such as inadmissibility of the claim, on pain of foreclosure. The starting point of the one-month time limit for contesting is a crucial moment, triggered by the notifying the debtor of the seizureAn act whose formalism is itself a potential source of nullity.
The debtor has a period of one month from service of the notice to lodge a dispute. This period is calculated from date to date. The dispute must be lodged by means of a writ of summons delivered to the distraining creditor. A copy of this summons must be served on the same day, or at the latest on the first working day thereafter, by registered letter with acknowledgement of receipt, to the bailiff who carried out the seizure. Omission of this formality, which is punishable by inadmissibility of the challenge, is a frequent error that can be fatal to the procedure for challenging the attachment.
The dispute may relate to formal or substantive invalidity. A nullity based on a formal defect, such as an error in the debtor's address, will only result in the annulment of the deed if the claimant proves the prejudice that this irregularity has caused him, in accordance with the law of civil procedure. On the other hand, a substantive nullity, such as the absence of a writ of execution or an irregularity in the service of the seizure report, is a cause for annulment by operation of law, without it being necessary to prove any prejudice.
Informing the garnishee and the bailiff: obligations and penalties
The garnishee, usually a bank, plays a central role and is liable in the attachment procedure. The garnishee is bound by an obligation to provide precise and immediate information to the judicial commissioner (formerly a bailiff). As soon as the writ of seizure is served, he must provide a clear answer on the extent of his obligations towards the debtor and communicate all supporting documents. This obligation is particularly strict, and failure to comply can result in severe penalties.
The garnishee must respond "immediately" to the court commissioner. He must indicate the nature and amount of his debt, as well as any terms and conditions affecting it (term, condition, previous seizures). If the debtor is a bank, the bank must declare the balance of all the debtor's accounts. The obligation to provide information weighs heavily on the garnishee, and failure to comply will result in severe penalties, particularly as regards specific obligations of the garnishee banker to manage complex accounts.
A third party who, without a legitimate reason, fails to provide a response, or who makes an inaccurate or misleading statement, may be ordered to pay the costs of the seizure. In other words, they may be forced to pay the debtor's debt in his place. They may also be ordered to pay damages to compensate for the loss suffered. Recent reforms, such as that of 2025 concerning the seizure of remuneration, although distinct, confirm a trend towards the dematerialisation of exchanges and the strengthening of the role of the judicial commissioner, which requires increased vigilance on the part of seized third parties.
Legal effects of the dispute on the payment and deposit of funds
Filing a dispute within the one-month time limit has a major suspensive effect: it defers payment of the sums seized. As long as the enforcement judge has not given a ruling, the garnishee cannot release the funds into the hands of the creditor. This suspension protects the debtor pending a ruling on the validity of the attachment measure.
For the duration of the proceedings, the sums remain unavailable in the hands of the garnishee. To secure the funds, any interested party may ask the enforcement judge to order them to be deposited with a receiver, which is often the Caisse des Dépôts et Consignations. In accordance with art. R. 211-2 of the CPCE, this measure, requested by petition, guarantees that the funds will be available at the end of the proceedings, either to pay the creditor if the challenge is rejected, or to be returned to the debtor if the seizure is cancelled.
Post-judgment remedies: appeal and stay of execution
The judgment of the enforcement judge is not necessarily the end of the dispute. It may be appealed, principally by way of an appeal. However, appeals against judgments of the JEX are governed by specific rules that differ in part from ordinary law, particularly as regards their suspensive effect. Even after a ruling by the JEX, appeals allow the defence to be pursued; it is therefore essential to be aware of all the rules governing appeals. debtor's rights with regard to enforcementincluding as soon as the initial document is received.
The appeal must be lodged within fifteen days of notification of the judgment. Notably, this appeal to the court does not have suspensive effect. This means that the JEX's judgment is provisionally enforceable and must be applied immediately, even if an appeal is pending. For example, if the judge has ordered the seizure to be released, the garnishee must return the funds to the debtor without waiting for the outcome of the appeal to the court. If, on the other hand, the court has validated the seizure, payment must be made to the creditor.
To compensate for the lack of suspensive effect of the appeal, the party contesting the judgement may apply to the first president of the court of appeal for a stay of execution. This emergency procedure suspends the effects of the JEX's judgment. The court will only grant the stay if the applicant demonstrates that there are "serious grounds for annulment or reversal" and that enforcement of the judgment would entail "manifestly excessive consequences". The effectiveness of this approach is decisive in preserving the rights of the party that believes it has been wronged by the first instance judgment.
The complexity of the time limits, formalities and appeals involved in seizure of assets makes the assistance of a lawyer who is an expert in enforcement procedures essential to ensure that your rights are protected. Solent Avocats will work with you to analyse your situation and put in place the most appropriate dispute strategy.
Sources
- Code of civil enforcement procedures (articles L. 211-1 et seq.; R. 211-1 et seq.)
- Code of judicial organisation (article L. 213-6)
- Code of Civil Procedure (articles 648 et seq.)
- Court of Cassation case law