La input-apprehension enables the forced execution of an obligation to deliver or return a tangible asset. This property may be held by the debtor or by a third party. The procedure may be carried out by virtue of a writ of execution or by order of the enforcement judge. Not to be confused with attachmentwhich is a protective measure designed to secure rights over a property.
Apprehension under an enforceable title
Tangible personal property can be seized either from the debtor or from a third party who holds it on his behalf. This is done when the creditor has an enforceable title, i.e. a court decision that allows him to act.
The procedure begins with an order to deliver or return the property. This document, drawn up by a bailiff, is served on the debtor. It contains all the details required for enforcement, failing which it is null and void. The bailiff then draws up a deed describing the voluntary surrender of the property or, failing that, its forced apprehension. This deed includes a detailed description of the property, sometimes accompanied by a photograph.
The property may be handed over to the owner creditor or to a pledgee. In the latter case, the act of apprehension is equivalent to a seizure in the custody of the creditor. The property may then be sold or awarded to the pledgee, in accordance with the rules in force for seizure and sale procedures.
When the property is held by a third party, authorisation from the enforcement judge is required to enter the premises where the property is located, especially if it is a private home. The third party receives a summons to hand over the property within eight days. If the third party fails to do so, the creditor may ask the enforcement judge to issue an order for the forced surrender of the property.
Apprehension on injunction of the enforcement judge
If the creditor does not have a writ of execution, he can ask the enforcement judge to issue a writ of execution. injunction to deliver or return tangible personal property. This request is made by application to the court in the place where the debtor lives.
If the application is accepted, the judge issues an order that must be served on the debtor. The debtor has fifteen days to transport the property at his own expense to the designated location and under the conditions specified in the order. The debtor may also lodge an objection if he has grounds for defence. Objections may be made by filing a declaration with the court clerk's office or by registered letter with acknowledgement of receipt.
If no objection is made, the creditor may apply to have the order declared enforceable. This gives the order the same force as a final judgment. The creditor can then implement the seizure and attachment as if he had a writ of execution. If an objection is lodged, the creditor will have to go to court to obtain a decision on the surrender of the property.
Enforcement in the absence or presence of opposition
If there is no opposition, the creditor can apply to have the court order declared enforceable. This allows the creditor to take direct action to seize the property, without further formality.
In the event of opposition, it is up to the creditor to bring an action before the competent court to decide whether the property should be delivered or returned. If the creditor does not act within two months of service of the order, the order lapses, as do any protective measures that may have been taken.
Conclusion
Seizure and attachment is an effective procedure for recovering a tangible asset held by a debtor or a third party. It can be carried out by virtue of a writ of execution or by order of the enforcement judge. This procedure does, however, require compliance with a number of formalities to ensure that the rights of the debtor and the creditor are respected, and it is important to note the potential obstacles and limitations that may arise. In this context, support from a lawyer specialising in enforcement procedures is often invaluable in navigating these complexities.
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