Attachment of a bank account is an enforcement procedure which, despite its apparent simplicity, involves considerable legal and accounting technicalities. For the creditor, it represents an effective means of recovery. For the debtor, it means the freezing of his assets and an intrusion into his personal financial situation. But for the bank, in its capacity as garnishee, it ushers in a period of intense responsibility in which every step is dictated by law. At the heart of this mechanism is article L. 162-1 of the Code of Civil Enforcement Procedures (CPCE), a dense text that organises the determination of the balance actually available to the creditor. This article sets out to decipher the workings of this complex operation, focusing on the banker's obligations and the process for clearing the transactions that transform the apparent balance on the day of the seizure into a balance that can be definitively seized. Before going into the technical details of calculating the balance that can be seized, it is essential to understand the general approach to attachment proceedingsThis is a formidable means of enforcement for creditors.
Introduction to the specific features of attachment of bank accounts
Entering a bank account is not simply a snapshot of the balance at a given moment in time. It is a dynamic process that must freeze an accounting situation that by its very nature fluctuates. The legislation resulting from the major reforms of civil enforcement procedures has had to reconcile the logic of enforcement law, which requires a certain and definite claim, with the reality of the operation of a bank account, where multiple transactions are constantly being processed.
Legislative framework and role of the garnishee banker
The current regulations, mainly contained in articles L. 162-1 and L. 162-2 of the CPCE, were designed to resolve three fundamental problems. Firstly, how to stop the flow of transactions to determine the exact amount of the seizable claim? Secondly, how do you deal with sums paid into the account that come from legally unseizable claims (part of the salary, certain social security benefits) without their registration in the account causing them to lose this protection? Thirdly, how can the debtor be guaranteed a minimum subsistence level to meet his or her basic needs, which has given rise to the "Solde Bancaire Insaisissable" (SBI), a lump sum left in the account (currently €635.71 as at 1 April 2024) to cover any urgent food expenses? In this context, the banker is not simply a holder of funds; the law confers on him an active role as an auxiliary of execution. It is the banker who calculates, declares, discharges and makes available the funds, thereby incurring liability at every stage. The same applies in the case of an administrative seizure by a third party (SATD), formerly a third party notice, initiated by an administration such as the Treasury. Attachment is often the culmination of a prior precautionary measureThe conversion to an enforcement measure is subject to strict rules to guarantee the debtor's rights.
Declaration of account balances on the day of seizure: obligations and penalties for the garnishee
The bank's first duty, as soon as the writ of attachment is served by a court commissioner, is to provide information. It must immediately declare the balance of all the debtor's accounts. This declaration forms the basis for calculation, but it is only provisional, as the seizure report issued by the commissioner is only a snapshot that will subsequently be adjusted by the settlement of outstanding transactions. Failure by the bank to comply with its reporting obligations may not only incur liability but also, in certain cases, contribute to the characterisation of a fraud. wrongful seizure if the creditor has acted wrongfully.
The scope of the obligation: all the debtor's accounts and their nature
The reporting obligation is broad. The bank must disclose the balances of all money accounts opened in the debtor's name in its books, without exception. This includes deposit accounts, current accounts, whether the person is an individual or a professional, passbook accounts or savings plans. It is worth noting that the obligation persists even for accounts with a debit balance. The bank cannot hide behind professional secrecy, which is expressly waived by law in this context. For each account, the bank must specify its nature (individual account, joint account, business account, etc.), which is vital for determining the extent of the creditor's rights.
Netting agreements and collective accounts: complexities and doctrinal clarifications
The situation becomes more complex if there are several accounts or several account holders. If a single account agreement (or "letter of amalgamation") has been signed prior to the seizure, the bank can offset the credit and debit balances of the debtor's various accounts. It will then only declare a single overall balance. To be enforceable against the distraining creditor, this agreement must have been declared. In the case of collective accounts, such as joint accounts, a seizure carried out on behalf of only one of the joint account holders will have effect on the entire credit balance. Active joint and several liability, which is specific to joint accounts, means that each account holder is entitled to the full amount of the funds. Case law considers that this effect extends to the seizing creditor. Recent doctrine emphasises that it is then up to the other joint account holder, who is informed of the seizure, to prove rigorously that all or part of the funds belong to him or her in order to remove them from the creditor's control, for example by proving his or her family situation and the exclusive origin of his or her income.
The obligation to provide supporting documents and associated penalties
In addition to simply declaring balances, the banker is required to provide the bailiff with supporting documents. However, case law has limited this obligation in order to protect the debtor's privacy: the bank does not have to provide a detailed statement of previous transactions. On the other hand, it must justify the existence of any account merger agreement. A distinction must be made between penalties. Failure to make a declaration or a knowingly false declaration carries severe penalties: the bank may be ordered to pay the costs of the seizure itself, in addition to any legal costs. On the other hand, if the bank simply fails to fulfil its obligation to provide supporting documents, it will only be liable for the damage actually caused to the creditor, which will give rise to an award of damages, as the Court of Cassation has pointed out (Cass. 2e civ., 6 May 2004).
Settlement of ongoing transactions: liquidation of the balance subject to seizure in accordance with article l. 162-1 cpce
Once the initial balance has been declared, a crucial and technical phase begins: the clearance of transactions. Article L. 162-1 of the CPCE sets out a restrictive list of transactions that predate the seizure but have not yet been booked, and which will increase or decrease the balance. This settlement takes place within fifteen working days of the seizure, during which time the funds are completely unavailable.
Credit transactions: cheques, bills of exchange and transfers
The balance declared must be increased by any cheques or commercial paper (bills of exchange, promissory notes) issued before the seizure but not yet credited. The same applies to a transfer made to the debtor before the seizure. Case law considers that the claim arises as soon as the transfer order is issued, even if it is actually recorded in the account after the attachment (Cass. 2e civ., 28 May 2003). These transactions therefore benefit the seizing creditor by increasing the basis for its seizure.
Debit transactions: unpaid cheques, ATM withdrawals and card payments
Conversely, certain previous transactions can reduce the balance. The law specifically refers to cheques credited "except in good faith" before the seizure and which return unpaid afterwards. Withdrawals from cash dispensers and card payments are also deducted, provided that their date is proven to be prior to the time of seizure and that the beneficiary of the payment was actually credited before that time. The decisive criterion is always the date of the transaction in relation to the entry itself, and not the date on which it was processed by the bank.
Reversal of discounted bills and special features of deferred debit cards
The legislator has provided specific rules for certain instruments. In the case of bills of exchange discounted before seizure and returned unpaid, the bank has an exceptional period of one month in which to reverse them, i.e. to debit the account for the corresponding amount. This rule protects the banker who has granted credit to the debtor on the basis of this bill. The case of deferred debit card payments is more controversial. There is some debate as to whether a payment made before the seizure, but contractually due to be debited at the end of the month (i.e. after the seizure), can be charged to the creditor's detriment. Article L. 162-1 CPCE seems to authorise this, giving the bank a clear advantage. However, recent case law has been careful to penalise incorrect application of these complex rules. The creditor then has a liability action against the bank, as was the case for the incorrect charging of a deferred debit card payment, causing prejudice to the seizing creditor who was deprived of part of the funds that should have been returned to him (Cass. 2e civ., 15 May 2024).
Interpretation of paragraph 4 of article l. 162-1 cpce: the fate of post-seizure sums
Paragraph 4 of the article is particularly complex and its interpretation is debated. It seems to provide for a specific charging mechanism when the cumulative result of the clearance operations is negative. According to one interpretation, this negative balance would be charged first to the "sums not affected by the seizure", i.e. the funds credited to the account after the seizure. This rule, which derogates from the principle of the instantaneous effect of the seizure, would allow the bank to reimburse itself for previous debit transactions using "new money", thereby protecting the initial base due to the creditor. This provision illustrates the technical nature of the subject and the need for a detailed analysis of the texts in order to grasp all the implications.
Transitional regime for the unavailability of seized accounts: scope, duration and adjustments
Throughout the liquidation phase of ongoing operations, the law imposes a strict regime to guarantee the creditor's rights: the total and general unavailability of all the debtor's accounts. This very strict measure can, however, be modified.
The rule of general unavailability of funds and its calculation
The act of seizure makes all the debtor's accounts unavailable, even those where the credit balance far exceeds the amount of the claim. This unavailability lasts for fifteen working days, a period extended to one month if commercial paper has been discounted. During this period, none of his means of payment can be used, and even his agreement to pay the creditor in advance is ineffective. This period is calculated in working days, which means that Saturdays, Sundays and public holidays are not counted.
Arrangements for unavailability: ring-fencing and irrevocable guarantee
Given the severity of this measure, adjustments are possible. Once the creditor has been informed by the bank of the available balances, he can decide to limit the effect of the seizure to one or more accounts, thereby freeing up the others. This is known as "ring-fencing". The debtor is not helpless in the face of unavailability, and can contest the measure and request that its effects be limited by a decision of the enforcement judge (JEX), who has extensive powers to control the measure. In addition, the debtor may obtain full release from the unavailability order if he provides an irrevocable guarantee (such as a bank guarantee) for the amount of the sums claimed by the creditor.
Deductions from unseizable sums and management of third-party funds: a specific approach
The seizure must not deprive the debtor of his means of subsistence or prejudice the rights of third parties. The law strikes a delicate balance between the rights of the creditor and the debtor. debtor protectionIn particular, certain sums will be earmarked to guarantee its subsistence and dignity.
Making unattachable claims available: principle, application and deadlines
When an account is funded by legally unseizable debts (family allowances, retirement pensions, alimony, unemployment benefits paid by France Travail, etc.), the unseizable nature of these minimum social benefits is transferred to the account balance. On request and with proof of the origin of the funds, the garnishee can obtain the release of these sums if they exceed the SBI. The law distinguishes between periodic debts (such as wages), which can be made available immediately, and non-periodic debts (such as redundancy pay), for which availability is deferred until after the clearance period. In addition to the technical calculation of the balance, the bank has a crucial role to play in protect funds that cannot be seized and make them available to the debtor in accordance with precise and binding terms and conditions.
Protection of third-party equity on joint and professional accounts
The protection extends to funds that do not belong to the seized debtor. On a joint account funded by the earnings and salaries of the spouse with joint property, the latter may demand that a sum equivalent to his or her last salary (or the average of the last twelve salaries) be left at his or her disposal, in order to protect his or her personal situation. Similarly, the seizure of the business account of an estate agent or notary may not, in principle, seize funds belonging to their clientele. However, case law requires third-party funds to be clearly identified in a special account in order to avoid any confusion of assets.
Electronic service of seizure documents and the challenges of territoriality
Technological developments have transformed the practice of seizures, with service by electronic means, online, becoming the norm for banking institutions. This dematerialisation is not without consequences for the banker's obligations and has made it possible to resolve certain long-standing controversies.
Methods of service and time limits for providing information
Where the writ of attachment is served electronically, the bank must respond in the same way and has one working day in which to provide the information and supporting documents. In the case of traditional 'paper' service, the response must in principle be provided 'on the spot', a requirement that has given rise to a great deal of litigation concerning the reasonableness of the bank's response time, given its internal organisation.
Controversies over the territorial scope of the seizure: head office vs. branch office
Traditional service raised the question of the scope of the attachment when it was addressed to a simple branch rather than to the head office. For a long time, case law held that the branch was only required to declare the accounts that it managed itself, obliging the creditor to contact the head office for full information. The widespread use of electronic service, addressed to the bank's legal entity as a whole, has largely rendered this controversy obsolete, as the bank is now required to declare all the debtor's accounts, regardless of where they are domiciled.
Determining the balance that can be seized is a legal and accounting exercise that requires great rigour on the part of the banker. Far from being a mere executor, he is a central player whose diligence and expertise guarantee the legal certainty of the procedure for all parties. The correct application of article L. 162-1 of the CPCE is a major challenge that requires a real commitment on the part of the banker. expertise in banking liability to secure transactions and prevent disputes. This article is intended as a practical guide, but each personal situation is unique. If you have any further questions about administrative or judicial seizure of your accounts, please do not hesitate to contact us.
Sources
- Code des procédures civiles d'exécution, in particular articles L. 162-1, L. 162-2, and R. 211-18 to R. 211-23.
- Monetary and Financial Code, for provisions relating to the operation of bank accounts and professional secrecy.
- Civil Code, for rules relating to matrimonial property regimes and the ownership of land.
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