Attachment is a powerful tool for recovering debts. However, certain atypical situations can complicate its implementation. A knowledgeable practitioner needs to be aware of these special situations to avoid procedural pitfalls and fully master the use of the system. general operation of seizure of assets.
1. Seizure on oneself: a little-known mechanism
A strategic tool in certain situations
Seizure in person allows a creditor to seize in his own hands a claim that he himself owes to his debtor. This technique, validated by the Court of Cassation, meets specific needs.
The typical situation concerns successively enforceable claims. Take the example of a tenant who is a creditor of his landlord and fears that other creditors will seize the rent. By seizing his own rent debt, he can secure his position.
As confirmed by the Court of Cassation in its ruling of 13 May 2014:" a creditor in possession of a writ of execution recording a claim that is due and payable may levy an attachment for payment in his own hands, the attributive effect of such an attachment when it relates to a claim for successive performance extending to the sums due by virtue of that claim since the service of the act of attachment " (Cass. 1st civ., 13 May 2014, no. 12-25.511).
Extinction by confusion
Technically, this procedure leads to extinction by confusion. The mechanism is doubly extinctive: the seized debt disappears by confusion (article 1349 of the Civil Code) and it proportionally extinguishes the debt that is the cause of the seizure.
This particularity makes seizure on oneself a procedure that is resolved without actual payment - a rare case in our law.
Strict conditions for implementation
To be valid, this entry requires:
- A writ of execution
- A claim that is liquidated and payable
- A claim by the distrainor against the debtor
- A debt owed by the distrainor to the same debtor
Case law has been fairly strict on the conditions for exercising this particular means of enforcement.
2. Complications arising from multiple players
Competition between distraining creditors
When several creditors make an attachment order on the same day, a situation of concurrence is created. Article L. 211-2 of the French Code of Civil Enforcement Procedures states that ". seizure documents served on the same day on the same third party are deemed to have been served simultaneously. If the sums available are insufficient to pay off all of the seizing creditors, these creditors will join in the seizure." .
It is irrelevant whether one of the creditors is preferred. Although article R. 211-1 requires the time of day to be mentioned on the deed, this does not affect the rank of the distrainors on the same day. This situation may frustrate the creditor who seized first on the day.
Multiple third parties seized
When a creditor wishes to seize his debtor's claims from several third parties, he must serve as many acts of seizure as there are third parties involved. Each document represents a separate attachment with its own effects.
Note this technical subtlety: in the case of a debt contracted for the maintenance of the household within the meaning of article 220 of the Civil Code, the writ of attachment must be addressed to each of the spouses.
Problems with multiple account holders
Joint accounts pose particular problems. Article R. 211-22 of the Code stipulates that ". when the seizure is made on a joint account, it is notified to each of the account holders" .
However, an important ruling by the Court of Cassation on 7 July 2011 (no. 10-20.923) clarified that failure to notify the co-holder does not invalidate the seizure. This decision preserves the creditor's rights while creating an ambiguous situation for the uninformed co-holder.
The Code is silent on undivided or usufruct accounts. However, it would be prudent to notify all holders of rights in the account.
3. The challenges of meaning
Service of the writ of seizure is a critical stage, and the pitfalls it entails underline the importance of mastering the attachment procedure and its formalities.
Identifying the right contact
A common problem concerns the identification of the competent garnishee. For banks, the Cour de cassation has ruled: " seizure in the hands of a credit institution is duly carried out only at the head office of that institution or at the branch that holds the accounts of the seized debtor "(Cass. 2e civ., 22 March 2006, no. 05-12.569).
For public accountants, article R. 143-3 of the Code requires that the document be served on the accountant assigning the expenditure. An error in identification renders the entry null and void.
The creditor may request information on the identity of the competent accountant under article L. 143-1 of the Code of Civil Enforcement Procedures. But beware: incorrect information does not validate an irregular seizure.
E-signature: ease and pitfalls
Since 2021, service by electronic means has been mandatory for seizures from banks (article L. 211-1-1 of the Code).
This simplifies the procedure but increases the risk of technical errors. The date and time of the electronic transmission determine when the claim is attributed to the debtor, making it crucial that the IT systems work properly.
Overseas territories: specific deadlines and procedures
For garnishees domiciled in the overseas collectivities (French Polynesia, Wallis and Futuna, New Caledonia), article 660 of the Code of Civil Procedure provides for a special system of service.
This procedure poses practical difficulties in determining the date on which the time limit for lodging a challenge expires, since the bailiff does not know when the document will be brought to the attention of the addressee.
4. Pitfalls linked to the behaviour of players
Failure by the garnishee to provide information
The garnishee must provide the bailiff with information about his debt to the seized debtor. Article R. 211-5 of the Code states that ". a garnishee who, without legitimate reason, fails to provide the information required shall be ordered, at the creditor's request, to pay the sums owed to the creditor" .
However, this severe sanction is limited by case law: the third party who is not the debtor can only be ordered to pay damages.
A legitimate reason - such as service on an unauthorised person or the need to carry out complex searches - may release the third party from this immediate obligation.
Refusal to pay
Refusal to pay by a garnishee who has recognised his debt gives the creditor the right to apply to the enforcement judge to obtain a writ of execution against the third party (article R. 211-9 of the Code).
Case law has specified that in order to be condemned, the third party must have acknowledged himself to be a debtor or have been judged as such (Cass. 2e civ., 10 January 2019, no. 17-21.313).
Successive seizures and collective proceedings
The impact of collective proceedings on seizures and allocations is a major legal pitfall, for which the time limits for denunciation and the effects of the opening judgement must be mastered with precision.
The opening of collective proceedings against the distrainee debtor after service of the attachment does not call into question the attribution of the claim to the distrainor.
However, notification of the seizure must be made to the procedural bodies in accordance with their powers. An important ruling by the Court of Cassation (4 March 2003, no. 00-13.020) stated that ". the seizure must be notified to the liquidator within a period of eight days, failing which it will lapse... as soon as the liquidation is completed ".
A seizure that is not notified to the liquidator within the eight-day time limit is particularly harsh for the creditor if it lapses, especially if the opening judgment is handed down during this short period.
A key technical point: the notice of denunciation must contain, on pain of nullity, the indication that disputes must be raised within a period of one month, with the precise expiry date (article R. 211-3 of the Code). An error in this date will render the document null and void.
In practice, it is better to allow for a safety margin when calculating this period, as the courts severely punish errors on this point.
In addition to the pitfalls associated with the behaviour of players and collective procedures, there are other pitfalls to be considered. specific seizure-attribution situations can also complicate the implementation of this enforcement method.
Sources
- Code of civil enforcement procedures, articles L. 211-1 to L. 211-5, R. 211-1 to R. 211-23
- Cass. 1st civ. 13 May 2014, no. 12-25.511, Bull. civ. 2014, I, no. 84
- Cass. 2nd civ. 7 July 2011, no. 10-20.923, JurisData no. 2011-013625
- Cass. 2nd civ. 22 March 2006, no. 05-12.569, JurisData no. 2006-032798
- Cass. com. 4 March 2003, n° 00-13.020, JurisData n° 2003-018032
- Cass. 2e civ., 2 Dec. 2004, n° 02-20.622, JurisData n° 2004-025912
- Cass. 2nd civ. 10 Jan. 2019, no. 17-21.313, JurisData no. 2019-000084
Faced with the complexity and many pitfalls of seizure-attribution, the support of an expert is essential. lawyer specialising in attachment is often essential to secure your procedures and defend your interests.
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