When a creditor seeks to recover his debt, the seizure of assets in a safe represents a specific enforcement procedure. This enforcement technique is governed by strict rules to protect the rights of both the creditor and the debtor.
1. Specific features of seizure for sale in a safe-deposit box
La seizure of assets placed in a safe depends on the location of the safe. If the safe belongs to the debtor and is located at his home, the classic seizure for sale procedure applies (art. L. 221-1 and R. 221-1 et seq. of the Code of Civil Enforcement Procedures).
On the other hand, if the safe deposit box belongs to a third party (in particular a bank), the special procedure set out in articles R. 224-1 et seq. of the Code of Civil Enforcement Procedures applies. This distinction is fundamental in determining the applicable regime.
Le safe deposit box contract is not a simple rental contract, nor a deposit contract. The Court of Cassation has qualified it as a custody contract (Civ. 1ère, 2 June 1993, no. 91-10.971), imposing a strict monitoring obligation on the banker.
2. The summons to pay: essential formalities
Mandatory information
The summons to pay served on the debtor must include several items, failing which it is void (art. R. 224-3 of the Code of Civil Enforcement Procedures):
- Denunciation of the writ of attachment previously served on the third party
- Mention of the writ of execution on which the proceedings are based
- Separate statement of amounts claimed
- An order to pay before the safe is opened or to attend when it is opened
- The place, day and time fixed for the opening
- Designation of the competent enforcement judge
The omission of even one of these details may render the deed null and void. A mistake by the lawyer or bailiff at this stage jeopardises the entire procedure.
Deadlines
The summons is served on the first working day following the seizure (art. R. 224-3). It may not be served before 6 a.m. or after 9 p.m., unless specifically authorised by the judge (art. L. 141-1).
The safe may not be opened before fifteen days have elapsed since the summons was served (art. R. 224-4). This period allows the debtor to settle his debt and avoid further proceedings. However, the debtor may waive this period by requesting that the proceedings be opened sooner.
3. Opening the safe
Practical arrangements depending on the presence/absence of the debtor
The opening takes place at the place, day and time indicated in the order (art. R. 224-3). There are two possible situations:
If the debtor is present, the opening is carried out with his assistance or that of his representative. The bailiff must be present (art. R. 224-1 and R. 224-2). Unless authorised by the judge, the creditor may not be present during the operations (art. R. 141-3).
In the absence of the debtor, the safe deposit box is opened in the presence of the owner of the safe deposit box or his authorised representative (art. R. 224-4). The bank branch manager or an authorised representative may perform this role.
Forced opening fees
The costs of the forced opening must be advanced by the distraining creditor (art. R. 224-4), even if they are borne by the debtor (art. R. 224-3 and L. 111-8). These costs can be substantial due to the technical problems involved in opening the debt, which often require the intervention of a specialist.
It is therefore essential to calculate the total cost of the procedure in advance. In some cases, the amount of the costs can approach that of the claim itself.
4. Inventory and continuation of the seizure
Distinction between seized and unseized assets
After the opening, the bailiff makes an inventory. The contents of the inventory differ depending on whether the debtor is present or absent:
In the presence of the debtor, the inventory is limited to the seized assets, which may represent only part of the contents of the safe (art. L. 111-7). Items that cannot be seized (personal mementos, etc.) are not included (art. R. 112-2).
In the absence of the debtor, all the assets contained in the safe are inventoried (art. R. 224-5). A distinction is made between seized assets and other assets.
If the safe does not contain any seizable goods or goods of no market value, the bailiff will draw up a statement of default (art. R. 221-14).
Collection and custody of goods
The seized assets are immediately removed and placed in the custody of the bailiff or a receiver appointed by the judge (art. R. 224-6).
Unseized assets inventoried in the absence of the debtor are remitted to the third party custodian of the safe or to a receiver, who is responsible for representing them at the request of the debtor (art. R. 224-5).
Once the goods have been removed, the debtor regains free access to his safe deposit box (art. R. 224-9).
Minutes and information formalities
The bailiff draws up a record of the operations, indicating the persons present and those to whom goods have been handed over (art. R. 224-6). These persons must sign the deed.
The bailiff may photograph the items removed from the safe (art. R. 224-5 and R. 221-12), thereby creating a means of proof for the parties.
A copy of the inventory is given to the debtor if he is present, or is served on him if he is absent (art. R. 224-7). This copy must state, in very clear characters :
- The place where the goods are deposited
- The one-month deadline for making an out-of-court sale
- The date from which a compulsory sale can take place
5. The sale of seized assets and its specific features
The debtor has one month from notification to proceed with an amicable sale (art. R. 224-7). This option is a key feature of the reform of attachment sales.
If the debtor finds a buyer, the bailiff informs the creditors of the proposed sale. The creditors have fifteen days to take a position (art. R. 221-31). The Paris TGI has accepted that implicit acceptance is possible (TGI Paris, JEX, 9 February 1995).
In the absence of an amicable sale, the forced sale is carried out in accordance with the ordinary rules for seizure and sale (art. R. 225-8). Similarly, the data entry incidents are governed by articles R. 221-40 to R. 221-56.
The complexity of this procedure and its many substantial formalities justify the intervention of a lawyer specialising in enforcement procedures right from the start. A simple formal defect can compromise the entire procedure and expose the creditor to irrecoverable costs.
Sources
- Code des procédures civiles d'exécution, articles L. 221-1 et seq., R. 221-1 et seq., R. 224-1 to R. 224-12
- Civ. 1ère, 2 June 1993, no. 91-10.971, RTD civ. 1994, p. 389, Zenati observ.
- TGI Paris, JEX, 9 February 1995, BICC 15 November 1995, No. 1201
- Civil 1st, 15 November 1988, no. 87-10.263
- Civ. 1st, 30 June 2004, no. 01-00.475, Bull. civ. I, no. 190
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