Over-indebtedness can seriously weaken your financial and personal situation. Filing a case with the Banque de France is an essential step in finding solutions and obtaining protection against your creditors.
The question then arises: can a seizure still be carried out despite an overindebtedness file?
While the principle is a stay of proceedings, there are many exceptions that make the situation complex.
The aim of this article is to give you a clear overview of this principle and its limits, by directing you to more detailed resources, such as a budget advice point or an experienced lawyer, for each point raised.
The principle: automatic suspension of seizures once an application has been accepted
When a person is no longer able to pay off all their non-business debts, they can apply to the Commission de surendettement des particuliers, an administrative body run by the Banque de France, for an overindebtedness allowance. The first crucial stage is the decision to accept the application. In accordance with article L. 722-2 of the Consumer Code, if your case is declared admissible, an important protection is put in place: the automatic suspension and prohibition of enforcement proceedings and assignments of debt.
In practical terms, once this decision has been notified, a creditor may no longer initiate new attachment proceedings (attachment of a bank account, attachment of earnings, assignment of wages, etc.) and proceedings already under way are automatically suspended. This protection is temporary, and the duration of the suspension may not exceed two years.
It ends when measures to deal with over-indebtedness are put in place (approval of the conventional recovery plan, imposed measures, or opening of a personal recovery procedure).
It is important to note that this suspension is not immediate on the day you submit your application. It only takes effect from the date of the admissibility decision, which may take several weeks. During this period, it is still technically possible to seize the file.
To avoid this, the debtor can ask the commission, as soon as the case has been filed, to refer the matter to the judge in charge of protection litigation to obtain an early suspension of proceedings (a power often exercised by the commission chairman in urgent cases). For an overall understanding of the different phases, please see our article on stages of the over-indebtedness procedure.
Exceptions: when seizure remains possible despite over-indebtedness
There are several notable exceptions to the principle of suspending seizures. In these specific cases, a creditor can legally pursue or initiate a seizure, even if your over-indebtedness file has been deemed admissible by the commission's decision.
Debts excluded from the principle of suspension
Some debts, because of their particular nature (known as the nature of the debt), are not covered by the suspension of proceedings. Seizure proceedings may therefore be initiated to obtain payment:
- Debts relating to a maintenance obligation: these are mainly maintenance payments. The maintenance creditor may continue to take enforcement measures, including an assignment against wages, to obtain payment of the debt.
- Criminal fines: debts owed to the State following a criminal conviction are not affected by the over-indebtedness procedure.
- Compensation awarded to victims of criminal offences: sums owed to a victim as damages under a criminal judgment are also excluded.
The special case of a foreclosure that has already begun
The situation is different when property seizure proceedings are already underway. Suspension is not automatic if the date for the compulsory sale of the main residence (the auction hearing) has already been set by a judge before the decision on the admissibility of the overindebtedness case. In this case, the sale can go ahead.
However, the over-indebtedness commission can ask the enforcement judge to postpone the sale date, but the judge is not obliged to agree. This is a particularly delicate situation, which requires special legal treatment, as explained in our article on the seized and over-indebted debtor in property seizures.
The importance of the list of creditors
When you put together your over-indebtedness file, you must declare all your creditors. The protection offered by the procedure only applies to creditors who have been informed by the commission that your case has been accepted.
A creditor whom you have failed to declare is not bound by the suspension of seizures. The creditor therefore retains full freedom of action and can take enforcement action to recover his debt, including seizing your bank account or assigning your wages.
The limited duration of protection
The stay of enforcement proceedings is not unlimited. The law sets a maximum duration of two years for this protection, from the date of the admissibility decision. This period is intended to ensure that the debtor's situation is dealt with effectively without prolonging the suspension indefinitely, to the detriment of creditors.
If no solution is found within this period (agreed plan, partial debt write-off, personal recovery without or with liquidation), creditors regain their right to take legal action against the debtor.
The essential nuance: a ban on prosecution does not mean a ban on taking legal action
It is essential to distinguish between an enforcement measure (seizure) and legal action. The suspension linked to over-indebtedness prohibits the creditor from forcibly recovering its claim to make you pay your debts.
However, it does not prevent him from taking legal action to have his right recognised and to obtain a judicial writ of execution.
For example, a creditor who does not yet have a judgment can take you to court during the over-indebtedness procedure. The creditor's aim will be to obtain a court order recognising the debt and ordering you to pay it.
He will not be able to use this judgment to levy a seizure as long as the over-indebtedness protection is active, but he will have secured his debt with an enforceable title, which constitutes a much stronger guarantee than a simple private deed and a security for the future.
This approach is perfectly legal, as confirmed by the Court of Cassation in a landmark ruling (Cass. 1re civ., 1 March 2017, no. 15-28.012).
The question of the period of validity of permits is a complex one, and our article on the time during which a bailiff can claim a debt clarifies this point.
Each over-indebtedness situation is unique and the interactions with seizure procedures are complex. For a precise analysis of your case and to defend your rights, the assistance of a lawyer specialised in enforcement is a protective approach.
Frequently asked questions
Can a bailiff seize my bank account if my over-indebtedness application is accepted?
In principle, no. The decision to accept your over-indebtedness application suspends all seizure procedures, including the seizure of your bank account, for the debts included in the application. A seizure is a serious measure, but it does not affect your right to an account and access to your essential means of payment.
Is the suspension of seizures immediate once the application has been submitted to the Banque de France?
No, the suspension is not immediate. It only takes effect once the commission has decided that the case is admissible, which can take several weeks. During this interval, a seizure is still possible, as a judicial commissioner (formerly a bailiff) has not yet received official notification to suspend his actions.
Which debts are not covered by the over-indebtedness procedure?
Because of their specific nature, maintenance debts, criminal fines and compensation due to victims of crime are excluded from the suspension of proceedings. Seizure remains possible to recover these specific debts. Rent debts, on the other hand, are covered by the suspension, even though they can be paid as a priority in the recovery plan.
What happens if I forget a creditor in my overindebtedness file?
A creditor who is not declared in the file is not informed of the procedure and is therefore not bound by the suspension of seizures. They retain the right to sue you individually to obtain payment of their debt. This is why full information is crucial at the time of filing.
Can my car be seized during the procedure?
No, if your case is admissible. Vehicle seizure is an enforcement procedure that is suspended by the admissibility decision. There is an exception if the vehicle is essential to your professional activity, in which case it is considered an unseizable asset. The law defines a list of assets as being exempt from seizure, and a work vehicle is often one of them.
Can my salary still be garnished once my case has been accepted?
Assignment of remuneration (or attachment of wages) is an enforcement procedure that is suspended by the admissibility decision, unless it is for the payment of a maintenance debt. In this case, the garnishee (your employer) must continue the assignment.
What happens at the end of the suspension of seizures?
The end of the suspension does not mean a return to the previous situation. The commission decides on the orientation of your case. Depending on your repayment capacity, a conventional plan may be negotiated to repay your debts in instalments. A moratorium (suspension of payments for up to 2 years) may also be imposed. If your situation is deemed to be irremediably compromised, a personal recovery procedure with or without liquidation may be opened, leading to the cancellation of your debts.
What does registration on the FICP mean?
When you file a case for overindebtedness, you are entered in the FICP (Fichier des Incidents de remboursement des Crédits aux Particuliers). This is information centralised by the Banque de France indicating payment difficulties. This registration, which lasts for the duration of the procedure (with a maximum of 7 years for a plan), can make it difficult to obtain new credit. It is a stop to the debt capacity to guarantee the treatment of the existing file.
What is the difference between a seizable asset and an unseizable asset?
The Code of Civil Enforcement Procedures sets out a list of assets deemed essential to the day-to-day life and professional activity of the debtor and his family. These assets are referred to as non-seizable (e.g. clothing, bedding, work tools). Anything that is not on this list can in principle be seized and may form part of the assets that will be used to repay creditors, particularly in the case of personal recovery with judicial liquidation.
Is a voluntary assignment of income also suspended?
Yes. The admissibility decision suspends and prohibits not only compulsory seizures but also any assignment of earnings that you may have made directly to a creditor. Any assignment made prior to the procedure must be stopped, except for a maintenance debt. A registered letter from the commission generally informs the employer of this stop.
EN 
FR