Attachment of a bank account is a formidable enforcement procedure for the debtor and remarkably effective for the creditor. It allows the creditor, armed with a writ of execution, to appoint a court commissioner to immediately allocate the sums of money held by a third party, usually a bank, on behalf of the debtor. However, not all assets held in a bank are treated in the same way. The complexity of financial products and account structures calls for a detailed analysis to determine precisely what can be seized and what is protected by law or contract. The purpose of this article is to clarify the scope of bank accounts and financial instruments that can be seized.
The general legal framework for the attachment of bank accounts
Attachment is a compulsory execution measure that enables a creditor to recover a debt by seizing sums of money belonging to the debtor but held by a third party. Before exploring the specific features of each type of account, it is crucial to understand the following points fundamental principles of seizure of assetsand the role of each party involved. The complexity of the rules governing the seizure of different accounts and the interaction with banking agreements often make it essential to the assistance of a lawyer specialising in enforcement procedures to secure the creditor's rights or effectively defend the debtor.
Definition and key mechanisms of seizure-attribution
This procedure is based on a tripartite relationship between the seizing creditor, the seized debtor and the third party (the bank). To implement this procedure, the creditor must hold an enforceable title, i.e. a court decision or notarial deed, which establishes a claim that is liquid (quantified) and due (when it falls due). The main feature of an attachment order is its immediate effect, as set out in article L. 211-2 of the Code of Civil Enforcement Procedures. As soon as the attachment deed is served by the court commissioner on the bank, the debtor's claim on his bank, as it exists on the day of the attachment, is transferred to the attaching creditor, up to the amount of his own claim. The immediate attributive effect is all the more powerful because it is part of a surprise procedureThe law authorises the judicial commissioner to act without prior warning to ensure the effectiveness of the measure.
The scope of bank accounts subject to seizure and attachment
The law refers specifically to "deposit accounts". This concept must be understood in its broadest sense. It is not limited to a simple current or sight account. It also covers term accounts, where funds are blocked for a specific period, and special accounts such as savings accounts. The basis for seizure is therefore potentially very broad, encompassing virtually all liquid assets that a debtor may hold with a financial institution, subject to certain specific protections.
Seizure of individual bank accounts and legal unseizability
When an account is held by just one person, the rules for seizure seem straightforward. However, the nature of the account and, above all, the origin of the funds held in it can give rise to major exceptions. The law has introduced a number of mechanisms to protect sums deemed essential to the debtor's livelihood.
Sight and term deposit accounts and savings books: their status in the event of seizure
Sight deposit accounts, commonly known as current accounts, are the main target of seizures. The sums in these accounts are, by their very nature, available and can therefore be seized. The same applies to term accounts; although the funds are in principle unavailable before maturity, seizure remains possible and will produce its effects at the end of the contract. Regulated savings accounts such as Livret A passbook savings accounts, Plan d'Epargne Logement (PEL) home savings schemes and Compte Epargne Logement (CEL) home savings accounts can also be seized. Their special rules, which may provide for conditions of unavailability, do not prevent the enforcement measure from being applied, barring very rare legal exceptions.
The Uncollectable Bank Balance (UCB): amount and protection mechanisms
To guarantee debtors a minimum standard of living, the law has introduced the SBI (Solde Bancaire Insaisissable). This is a sum that must be left at the disposal of the individual debtor, regardless of the amount of the debt. This SBI is a flat-rate amount equivalent to the amount of the Revenu de Solidarité Active (RSA) for a single recipient. As at 1 April 2024, this amount is €635.71. The bank is obliged to make this sum available automatically, which is the fundamental protection of the SBI, without the debtor having to request it. This protection is in addition to the unseizability of certain specific claims (family benefits, maintenance payments, daily allowance for accidents at work, unemployment benefit or reimbursement of medical expenses) which, if paid into the account, must also be made available to the debtor. If a debtor considers that the calculation of the sums that cannot be seized is incorrect or that the procedure is irregular, he has a period of one month in which to contesting an attachment order before the enforcement judge, a procedure that may incur legal costs. It should be noted that this protection of the SBI also applies to the administrative seizure by third party holder (SATD), a public law procedure used by the Treasury or social organisations to recover their own debts.
Unseizability of unused credit facilities
A current account credit facility is a loan promise made by the bank to its customer. As long as the customer has not used this credit line, he is not a creditor of the bank; he only has a "drawing" right. Consequently, the unused portion of a credit facility does not constitute an existing and available claim on the debtor's assets. It cannot therefore be the subject of an attachment order. This exemption from seizure is based on a fundamental legal distinction between the obligation to give a sum of money and the obligation to do something, since the bank only has a promise to lend.
Securities accounts: a specific seizure regime
Securities accounts, which hold transferable securities (shares, bonds, etc.), are excluded from the scope of seizure for recovery. These assets are not money claims but shareholder rights or negotiable debt securities. Their seizure is subject to a separate procedure, the seizure of shareholder rights and securities, governed by articles L. 231-1 et seq of the Code of Civil Enforcement Procedures. These assets are therefore subject to specific enforcement procedures which guarantee the rights of companies and other shareholders.
Seizure of collective accounts and business funds
The situation becomes even more complex when the bank account is held by several account holders or when the funds actually belong to third parties. Determining ownership of the sums then becomes a central issue in the procedure.
Joint accounts: presumption and burden of proof in attachment proceedings
Joint accounts, which are often opened between spouses or cohabitees, are characterised by active solidarity: each co-account holder has access to all of the funds. In the event of seizure by only one of the joint account holders, case law considers that the entire credit balance is presumed to be seizable. It is then up to the other joint creditor, who is not the debtor, to rebut this presumption. He or she must prove that all or part of the funds belong to him or her. The matrimonial regime of the spouses has a direct impact: under the community regime, the funds are deemed to belong to both spouses and can therefore be seized for a joint debt. On the other hand, for a debt contracted by just one spouse without the other's consent (a guarantee, for example), only his or her own property and income can be seized, in accordance with article 1415 of the Civil Code.
Joint accounts and dismemberment of ownership (usufruct/bare ownership): specific attachment rules
Unlike joint accounts, joint accounts do not benefit from active solidarity. The funds belong collectively to the joint owners, and transactions generally require their unanimous agreement. The seizure can only relate to the debtor's share in the joint ownership. In the case of joint ownership accounts, a distinction must be made between the rights of the usufructuary and those of the bare owner. The usufructuary, who has a quasi-usufruct on the sums of money, can dispose of them, and his creditors can therefore seize the balance of the account. The bare owner, on the other hand, only has a claim to repayment at the end of the usufruct, which makes it more difficult to seize his rights in this way.
Treatment of professional funds (client accounts of lawyers, notaries, etc.) held by seized third parties
Some professionals, such as lawyers with CARPA accounts (Caisses de Règlements Pécuniaires des Avocats) or notaries, hold funds on behalf of their clients. These funds are not part of their personal assets and cannot cover their debts or operating costs. They are earmarked for a specific purpose and in reality belong to the clients. As a result, the lawyer's or notary's personal creditors cannot seize these accounts, as the sums held in them do not constitute their pledge.
The influence of banking agreements and securities on the scope of seizure-attribution
Contracts signed between a bank and its customer can radically change the rules governing seizability. Account organisation agreements or security interests granted by the debtor can either extend or restrict the funds available to a seizing creditor.
Unit of account and bank clearing agreements
The unit account agreement makes it possible to merge the balances of several accounts opened in the name of the same account holder. Legally, there is now just one account with a single balance. In the event of a seizure, it is this overall balance that will be taken into account, even if some sub-accounts are in credit and others in debit. A netting agreement authorises the bank to offset reciprocal debts and claims with its customer. Whether it can be used against the seizure will depend in particular on the rules relating to the connection of claims, especially if the debtor is involved in insolvency proceedings.
Pledging current accounts and cash collateral: securing seizability
Account pledges and cash pledges are securities that enable a creditor (often the bank itself) to secure a debtor's assets. Pledging relates to the customer's claim against the bank (the credit balance). Cash collateral involves the transfer of ownership of a sum of money as security. If validly constituted and prior to the seizure-attribution, these securities give the pledged creditor a preferential right that takes precedence over that of the seizing creditor.
Modern issues: seizure and attachment in the face of digital assets and credit transfers
The increasing dematerialisation of assets and the acceleration of financial transactions pose new challenges for the attachment procedure, forcing the law to adapt to unprecedented technical realities.
Garnishment and cryptocurrencies: the challenges of digitisation
Crypto-assets, such as cryptocurrencies or NFTs, are classified as intangible personal property. As such, they can theoretically be seized. However, their effective seizure comes up against considerable practical obstacles: the relative anonymity of the holders, the need to control the private keys to access the assets, and their high volatility. The cooperation of digital asset exchange platforms (DAPs) therefore becomes essential to enable the measure to be enforced. The legal framework, particularly under the impetus of the European MiCA regulation, is tending to be structured to better address these new challenges.
Unseizability of life insurance policies prior to settlement
Life insurance policies are protected. As long as the policy has not been unwound (by the death of the insured or by a surrender), the policyholder has only a simple surrender option, a personal right that is not a current and due claim. As a result, the policyholder's creditors cannot seize the surrender value of the policy. It is only at the time of the actual surrender or unwinding that the sums become subject to seizure. However, although it is difficult to seize the policy itself, it can be the subject of a financial guarantee instrument voluntary, such as pledging, which organises the creditor's rights by agreement.
Attachment and bank transfers: irrevocability of orders
Does a transfer ordered by the debtor before the seizure but carried out afterwards affect the seized balance? The Court of Cassation clarified this point in a recent decision (in particular Cass. Civ. 2e, 24 March 2022, no. 20-12.241). The transfer order becomes irrevocable as soon as it is received by the originator's bank. However, such an order is not treated in the same way as a withdrawal and is not included among the transactions that may affect the account balance after seizure. Thus, even if the order is prior and irrevocable, the corresponding funds are not removed from the basis for attachment; they remain in the debtor's assets until the transaction is actually completed and are therefore attached by the immediate attributive effect on the date of attachment.
Determining the scope of an attachment order requires in-depth technical expertise in banking rules, securities and enforcement procedures. Each situation must be analysed on a case-by-case basis to identify the assets that can be seized, optimise the chances of payment and assert legal protections. If you are faced with such a procedure, whether as a creditor or debtor, the assistance of a specialist lawyer and the involvement of the court commissioner are essential to effectively defend your rights.
Sources
- Code of civil enforcement procedures
- Civil Code
- Monetary and Financial Code
- Commercial code
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