Attachment is a formidable collection procedure for creditors, but the final phase, payment, is a complex process that is often underestimated. For the creditor, the aim is to obtain satisfaction of the debt. For the garnishee, typically a bank, the challenge is to discharge its obligation without making any mistakes. For the debtor, this final stage raises questions about his residual rights and the legal protections that remain. The payment phase of a distraint is a critical stage, where the assistance of a lawyer is essential. lawyer specialising in enforcement procedures is often decisive. Before analysing in detail the complex mechanisms of payment and release of the garnishee, it is essential to understand the entire attachment procedure.
I. Effective payment of the attachment: procedures and obligations of the creditor
The mere legal attribution of the claim by the act of seizure is not sufficient to satisfy the creditor. Only the physical delivery of the funds by the garnishee constitutes a satisfactory payment. Not only must this payment be effective, but it must also be made by the creditor himself, who must take the necessary steps to ensure that his rights are not undermined.
A. The different forms of actual payment by the garnishee
Payment takes the form of funds being made available to the creditor or his agent, such as a commissioner of justice (formerly a bailiff). Several instruments can be used, but not all are equally effective in immediate legal terms. Payment by cheque, although common, only releases the garnishee and satisfies the creditor when it is actually cashed, in accordance with art. L. 131-67 of the French Monetary and Financial Code. Simply handing over the cheque is not sufficient. However, for the purposes of calculating interest, case law (for example, a January 2023 ruling) refers to the date on which the cheque is handed over, considering that the creditor is then in a position to take the necessary steps to cash it.
Payment by bank transfer is increasingly favoured for its security. In this case, payment is only considered effective when the sum is credited to the account of the beneficiary creditor. A simple transfer order or debit entry to the garnishee's account is insufficient to complete the payment. Whichever method is used, the person who receives the payment, whether the creditor or his agent, must issue a receipt to the garnishee and inform the debtor, as provided for in art. R. 211-7 of the Code of Civil Enforcement Procedures. If the claim is denominated in a foreign currency, payment must in principle be made in that currency, as the creditor cannot charge the garnishee for exchange costs.
B. Compulsory collection and remedies against defaulting garnishees
The seizure-attribution deed, which replaces the former seizure report, makes the third party personally indebted to the seizing creditor. As a result, if the third party refuses to pay, even though he or she has recognised the debt or a court ruling has been made in his or her favour, a specific remedy is available. The creditor may then apply to the enforcement judge to obtain a writ of execution directly against the garnishee, as provided for in art. R. 211-9 of the Code of Civil Enforcement Procedures. This legal procedure is not a mere formality: a writ of summons must be drawn up and served to bring the matter before the court, guaranteeing an adversarial debate in which the third party can set out the reasons for its refusal, for example the existence of a concurrence with other distraining creditors. This recourse is only possible if the garnishee's debt is undisputed or legally established. If the third party has denied being a debtor and no judgment has been passed, the creditor cannot obtain a writ of execution on this basis. He will then have to take action on the grounds of liability for inaccurate or misleading declaration.
C. The seizing creditor's diligence and the risk of forfeiture of rights
Debt collection is a right for the creditor, but it is also a burden. He must actively seek payment from the garnishee. If the creditor remains inactive and this lack of diligence causes harm to the debtor, for example because the garnishee has become insolvent in the meantime, the creditor may be penalised. Art. R. 211-8 of the Code of Civil Enforcement Procedures provides for an original sanction: forfeiture of the creditor's rights against the seized debtor, up to the amount of the sums owed by the third party. In other words, if the failure to pay is attributable to the creditor's negligence, the creditor forfeits his rights of recourse against his original debtor for the corresponding portion. Case law characterises negligence as prolonged inaction: absence of formal notice, absence of information to the debtor about payment difficulties, and above all, absence of any initiative to initiate forced collection action against the garnishee third party and thus recover the money owed.
II. The conditions for full payment and the specific features of seized claims
To be fully satisfactory, the garnishee's payment must cover all the causes of the seizure. These are not limited to the principal of the debt; they include the costs of the proceedings and interest, up to the limit of the third party's own obligation.
A. Inclusion of procedural costs and default interest in the payment
The "grounds for seizure" include the principal of the debt, the costs of the enforcement procedure and default interest. The initial act of seizure contains a statement of account that includes a provision for the interest due during the month of the dispute. However, this amount is often approximate. If the debtor contests, payment is delayed and the final amount of interest due on the day of actual payment will be higher than the initial provision. The creditor is entitled to demand that the amount due be updated. Conversely, if the debtor authorises early payment, the amount of interest will have to be recalculated downwards.
B. Analysis of the limits of the garnishee's obligations and successively enforceable claims
The garnishee's payment is always capped by the amount of his own debt to the debtor on the day of the seizure. He cannot be forced to pay more than he owes, even if the distrainor's claim is higher. The determination of this payment is complicated by specific situations. Particular attention must be paid to the payment of periodic debts, such as rent or annuities, which are subject to the same rules as other debts. specific regime for successively enforceable claims. The garnishee then makes instalments, month by month, as and when they fall due. Seizure ends either when the creditor's debt is repaid in full, or when the third party's obligation to the debtor is extinguished (for example, at the end of a lease). The law imposes an obligation of reciprocal information: the creditor must inform the third party of the extinction of the debt, and the third party must inform the creditor of the end of its commitment.
Another specificity concerns seizures carried out in the hands of a public accountant, an operation that is similar in spirit to an administrative seizure. Due to strict public accounting rules, an accountant who pays without authorisation would incur personal and pecuniary liability. In addition, for successively enforceable claims, art. L. 143-2 of the French Code of Civil Enforcement Procedures requires the creditor to renew the seizure every five years, failing which it will lapse.
III. Secure release for garnishees: payment authorisations and deposit mechanisms
For a garnishee, the major challenge is to ensure that the payment they make is in full discharge of their debt. Paying the wrong person or at the wrong time exposes them to the risk of having to pay a second time. The legislator has therefore put in place strict authorisation and deposit mechanisms to secure this stage.
A. Prior authorisation to pay: basis, forms and sanctions
The principle is clear: the garnishee can only pay the creditor on presentation of an authorisation. This payment authorisation marks the transition from a phase of unavailability to a phase of enforcement, which may follow on from the earlier stage of protective seizure to guarantee the debt. There are three forms of authorisation:
- Certificate of no contest : If the debtor does not contest the seizure within one month of notification of the seizure, the creditor may obtain a certificate of non-contestation from the court registry or the court commissioner (formerly the bailiff) who carried out the seizure. Presentation of this document to the garnishee authorises payment.
- The debtor's declaration : The debtor may, in writing, declare that he is not contesting the attachment and authorise payment even before the one-month period has expired. This authorisation removes the prohibition on payment and allows the garnishee to be released early.
- The decision of the enforcement judge : In the event of a dispute, payment is suspended. It can only be made on presentation of a decision by the judge - often an order - rejecting the dispute or authorising a provisional payment.
The penalty for making a payment without one of these authorisations is that it cannot be enforced against the debtor or other creditors. In practical terms, if the debtor's challenge is finally upheld, the garnishee who paid prematurely will have to pay a second time, this time to his original creditor (the garnishee debtor) or to another legitimate creditor.
B. The system for depositing seized sums: generalities and special cases
When faced with a complex or contentious situation, the garnishee has another way of freeing himself: deposit. Art. R. 211-2 of the Code of Civil Enforcement Procedures allows any interested party to request that the sums seized be paid into the hands of a receiver (often the Caisse des Dépôts et Consignations), appointed out of court or by the enforcement judge on application. Remittance of the funds to the receiver has a major liberating effect for the garnishee: it stops the accrual of any interest it may owe. On the other hand, it does not satisfy the creditor, who will not be paid until the dispute has been settled and the receiver has been ordered to hand over the funds. This mechanism becomes compulsory in the event of a dispute over a seizure relating to a debt in successive performance. The garnishee must then pay the instalments as they fall due into the hands of the receiver, until such time as the dispute has been decided.
IV. Specific challenges: seizure of joint accounts, matrimonial property regimes and unseizable funds
The apparent simplicity of seizing a bank account comes up against the complexity of debtors' personal situations. Matrimonial property regimes and the protection of unseizable vital funds create particular challenges for the seizing creditor and the garnishee banker.
A. Impact of matrimonial property regimes on the attachment of joint accounts
Seizure of a joint account to recover a personal debt owed by only one of the joint account holders (who holds the account in his or her own name) is a frequent source of dispute. The rules that apply depend on the marital status of the spouses. Under the legal community regime, funds deposited in a joint account are presumed to be joint property (art. 1402 of the Civil Code). A creditor whose debt arose during the marriage may, in principle, seize the entire balance. However, if the non-debtor spouse can show that the account is funded exclusively by his or her own income, the seizure may be cancelled.
Under the regime of separation as to property, the situation is reversed. The funds are presumed to belong jointly and severally to each spouse, with no joint and several liability for the whole. In principle, therefore, the creditor can only seize half of the balance. To seize more, it is up to the creditor to prove that the funds belong to the debtor in their own right and in a greater proportion. The case law of the Cour de cassation is consistent on this point: the burden of proof falls heavily on the seizing creditor, who must identify the debtor's personal funds in order to justify a seizure exceeding half the balance.
B. Protection of unseizable funds: salaries, allowances and unseizable bank balance (SBI)
The law protects part of the debtor's resources, such as a fraction of the salary, to guarantee a minimum standard of living. Even when a bank account is seized, the seizing third party, in particular the bank, is obliged to protect the unattachable bank balance (UBB)This is equivalent to the RSA for a single person. This amount, equivalent to the RSA for a single person, must be left at the debtor's disposal, regardless of the amount of the seizure. In addition, certain debts are declared exempt from seizure by their very nature. These include most social and family benefits (RSA, AAH, family allowances, etc.). When a bank account is credited with such sums, they cannot be seized. In this case, the debtor must provide the bank with supporting documents in order to have the seizure of these amounts released. If you have any questions about your situation, you can contact your bank or a legal adviser. The intervention of a professional is often necessary to ensure that no unseizable sums are taken.
V. Incident management and recourse: the role of enforceable titles and bank liabilities
The payment phase is not free from incidents, whether a refusal to pay by the garnishee or complications relating to the means of payment used. In the event of obvious irregularities or disproportionate use of the procedure, a seizure deemed abusive may not only be annulled, but may also entitle the debtor to damages.
A. The non-payment certificate: obtaining and enforceability
In the specific case of a cheque payment that is returned unpaid for lack of funds, the bearer (the seizing creditor) has an effective recovery tool at his disposal. After a second unsuccessful presentation or at the end of a thirty-day period, he can ask the drawee banker for a certificate of non-payment. This document, once served on the drawer (the garnishee), is equivalent to a summons to pay. If payment is not made within fifteen days, the court commissioner may then affix the executory clause to the certificate, which becomes an enforceable title, in the same way as a court decision, enabling forced recovery measures to be taken against the garnishee.
B. Cheque payment incidents: stop payments and bank liability framework
Payment by cheque can be blocked by a garnishee's stop payment. However, a stop payment is only legal in the very limited circumstances set out in art. L. 131-35 of the French Monetary and Financial Code: loss, theft or fraudulent use of the cheque. Any other stop payment is unlawful and renders the person making it liable. The drawee banker does not have to check the veracity of the reason given, but must refuse to pay a cheque that has been stopped for a reason not authorised by law. In the event of payment of a falsified or counterfeit cheque, the bank may be held liable if the anomaly was sufficiently serious to be detected by diligent examination.
C. Civil and criminal consequences: banking ban and post-seizure recourse
Failure by the garnishee to pay for a cheque may result in the garnishee being banned from issuing cheques. Beyond the incidents, the creditor retains his rights against the seized debtor if the garnishee does not pay, except in the case of negligence on his part (and subject to the limitation period of his title). In addition to payment incidents, the debtor may also explore the following options grounds for contesting an attachment order itself, which may influence the outcome of the payment procedure. It should be noted that similar mechanisms exist for public debts, via the administrative seizure by third party holder (SATD), an administrative procedure whose implementation is entrusted to the public accountant. The complexity of these mechanisms highlights the importance of legal support for all parties involved.
The payment procedure for a seizure-attribution is a precision mechanism in which each stage is governed by the strict rules of the Code of Civil Enforcement Procedure. Protecting the interests of the creditor, the debtor and the garnishee depends on scrupulous compliance with the obligations of diligence, information and authorisation. Faced with the complexity of payment rules and possible remedies, securing your rights requires the intervention of a lawyer specialising in enforcement procedures.
Sources
- Code of civil enforcement procedures
- Civil Code
- Monetary and Financial Code
- Commercial code
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