The seizure and sale of movable property is a common debt collection procedure, but it takes on a particular character and complexity when it has to be carried out not at the debtor's home, but at the home of a third party who holds the debtor's property. This situation, which is common in practice, exposes the holder, who is often unwittingly involved, to strict legal obligations and considerable financial risks. Whether it's a craftsman holding a vehicle for repair, the manager of a storage company or even a relative housing furniture, the third party finds himself at the heart of a legal process that goes beyond him. Understanding the stages of this procedure, as well as their rights and duties, is therefore essential if they are to navigate a situation with potentially far-reaching consequences. The purpose of this practical guide is to explain the procedure in detail. lawyer specialising in enforcement procedures to secure the procedure and defend your rights.
Understanding the seizure and sale of movable property from a third party: principles and prerequisites
Seizure for sale to a third party is a compulsory execution measure enabling a creditor, in possession of a writ of execution, to sell the movable property of his debtor in order to be paid from the sale price. The special feature of this procedure is that it applies to assets that are not held by the debtor himself, but by another person. This specific procedure is part of the broader framework of seizure and sale of movable property under ordinary law. fundamental principles governing this procedure before looking at the particularities of involving a third party. Like any seizure and sale, it requires the debt to be certain, liquid and due, and recorded in a writ of execution.
The summons to pay: the starting point for proceedings
Before any seizure is carried out, the creditor must serve the debtor, and the debtor alone, with a summons to pay. This document, issued by a court commissioner, is a solemn summons to pay, enjoining the debtor to settle his debt. It is not yet an act of seizure in the strict sense of the term, but it is an essential prerequisite that initiates legal proceedings. The debtor then has a period of eight days from the date of service of the writ to settle the debt. Only when this period has expired, if no payment has been made, can the seizure operations actually begin at the premises of the third party holder.
The concept of third party holder in the sale and seizure of movable property
The third party holder is any person, natural or legal, who holds tangible movable property belonging to the debtor. Article R. 221-9 of the French Code of Civil Enforcement Procedures is very clear: a seizure may be carried out at any place where the debtor's assets are located. The place of seizure is therefore not defined in terms of the debtor's person, but in terms of the location of his assets. A craftsman who repairs a vehicle, a haulier, a storage company or a friend who houses furniture can therefore be qualified as third-party holders. The procedure will then take place with them, even if they have no legal link with the initial debt.
Authorisation from the enforcement judge: essential protection for third-party debtors
Entering a private place, especially that of a person other than the debtor, is a significant intrusion. This is why the law has introduced a judicial filter to protect the rights of third parties. The intervention of the enforcement judge (JEX) is a fundamental guarantee that strictly governs the conditions of seizure at a third party's home. This judicial stage is crucial and highlights the role of the JEX in protecting the rights of third partiesThis is a central aspect of many procedural incidents, as confirmed by established case law.
When is the jex's authorisation required?
Article L. 221-1 of the French Code of Civil Enforcement Procedures requires the authorisation of the JEX if the seizure is to take place on premises used as the third party's home. This protection is broad and applies whether the premises are the third party's principal residence, secondary residence or even a temporary residence, such as a holiday let. This obligation applies regardless of the amount of the debt to be recovered. However, if the debtor's possessions are stored in a place that is not used as a dwelling, such as an unoccupied warehouse or garage, this prior authorisation is not, in principle, required. The creditor may choose whether the JEX of the place where the debtor lives or the JEX of the place where the seizure is to be carried out has territorial jurisdiction over the application.
The jex application procedure and the "dual procedure
To obtain this authorisation, the creditor, via the court commissioner, must submit a reasoned request to the JEX. This application must set out the grounds and reasons justifying the measure and contain all relevant information to enable the judge to assess the merits of the case. If the judge grants the application, he will issue an order authorising the seizure. A special procedural feature then comes into play: the third party must be informed before the debtor. The court commissioner must first present the order to the holder before making an inventory of the assets. The debtor, for his part, will only be informed of the seizure at a later stage by means of a denunciation. It should be noted that if the third party is absent and the premises have to be forcibly opened, a second application to the JEX is required if the initial order did not expressly provide for this possibility.
Seizure operations and the role of the third party holder
Once the preconditions have been met, the court commissioner can go to the third-party debtor's premises to carry out the seizure. The procedure varies considerably depending on whether the person is present and cooperative, or absent and recalcitrant. In all cases, the third party is at the centre of a procedure that imposes a duty of loyal cooperation, on pain of sanctions.
Seizure in the presence of a third party: invitation to declare assets
When the court commissioner goes to the third party, he invites him to declare the assets he holds on behalf of the debtor. The third party must then indicate what these assets are and whether they have already been subject to a previous seizure. This declaration is recorded in the seizure report. The third party must understand the scope of this obligation. A refusal to declare, or an inaccurate or untruthful declaration, exposes the third party to severe penalties: he or she may be personally ordered to pay the causes of the seizure, i.e. the amount of the debt, and therefore to settle it, as well as damages. If the third party declares that he does not hold any assets, the court commissioner will draw up a statement of difficulties and warn him of the penalties incurred in the event of a false declaration.
Seizure in the absence of the third party: assistance and police force
If the judicial commissioner finds the door closed or is refused access, he cannot force his way in alone. Article L. 142-1 of the Code of Civil Enforcement Procedures requires him to be assisted. They may request the presence of the mayor of the municipality, a local councillor, a police or gendarmerie officer or, failing that, two independent witnesses of legal age. These "privileged assistants" are there to ensure that the forced opening of doors is carried out correctly, including the opening of furniture. This assistance should not be confused with the assistance of the police, which is only required in the event of active resistance and a risk of public order disturbance, and which falls under the authority of the Prefect.
Specific rights and obligations of the third party holder
Caught up in a procedure that does not concern them directly, third-party debtors are not without rights. While the law imposes strict obligations on third parties, it also provides them with guarantees and powers to protect their own interests and discharge responsibilities that do not fall to them.
Garnishee's reporting and custody obligations
The third party's main obligation is to accurately declare the debtor's assets in his possession. Once the inventory has been drawn up, if the person does not refuse custody, he or she is deemed to be the custodian of the seized assets. This status has important consequences. The assets become unavailable: the third party cannot sell them, give them away or move them without authorisation. They are also prohibited from returning them to the debtor, even if the latter is the owner. Failure to comply with this custody obligation carries severe penalties and may constitute an offence of misappropriation of seized property, punishable under article 314-6 of the Criminal Code.
Penalties in the event of breach by the third party: conviction and damages
Third parties who fail to meet their obligations are severely punished. As mentioned above, an inaccurate declaration or refusal to declare may result in the third party being ordered to pay the costs of the seizure. The third party then becomes personally liable for the debt owed by the original debtor, unless he can subsequently take recourse against the latter. This sanction, set out in article R. 221-21 of the Code of Civil Enforcement Procedures, stems from the general obligation to cooperate fairly with the courts. If damages are to be awarded, the distraining creditor will have to prove that the third party's inaccurate or misleading declaration caused him or her harm (grievance), which makes legal proof more demanding.
Rights of the third party holder: refusal of custody and claim
The third party is not obliged to accept responsibility as custodian of the seized assets. Article R. 221-27 of the Code of Civil Enforcement Procedures expressly recognises their right to refuse custody, or to request to be relieved of this responsibility at any time. In this case, it is up to the court commissioner to appoint another custodian and organise the removal of the assets. In addition, if the third party has a claim on the debtor (for example, repair or storage costs), he can exercise a right of retention over the seized goods. The third party must inform the court commissioner of this. Finally, if the third party is the owner of some of the goods seized by mistake, or if the seizure relates to an object that cannot be seized (such as clothing or linen), the procedure for reclaiming goods by third parties is a specific action enabling a person who claims to be the owner of a seized asset to remove it from the execution procedure.
Specificities and immunities: special cases of seizure from a third party
The seizure-sale procedure involving a third party may come up against legal obstacles linked to the specific status of the holder. The principles of immunity from execution or the rules governing the protection of personal data can complicate the implementation of recovery measures and require specialised expertise.
Immunity from execution for public entities and foreign third-party seizures
When a debtor's property is held by a person who enjoys immunity from execution, the seizure becomes particularly delicate, as shown by administrative case law. This is the case with foreign states, their emanations (such as embassies), international organisations and central banks. The principle is that their assets, especially those assigned to public service missions, cannot be seized. A seizure can only be carried out if the State has expressly and specifically waived its immunity for the assets concerned, by virtue of article L. 111-1-3 of the Code of Civil Enforcement Procedures. The procedure is therefore highly regulated, and authorisation for seizure falls within the exclusive jurisdiction of the Paris enforcement judge.
Foreclosure on movable property and protection of personal data (rgpd): the case of third-party banks
The involvement of a bank raises specific questions, because The case of third-party banks in seizure procedures is complex, particularly in terms of information and data protection. When a court commissioner asks a bank about the assets held by a debtor (for example, the contents of a safe-deposit box), the bank is caught between its legal obligation to respond and its duty to respect banking secrecy and the protection of personal data (RGPD). This situation is to be distinguished from the administrative seizure by third party holder (SATD), governed by the Tax Procedures Book (LPF), where a notice is sent directly by an administration. In the case of seizure for sale, case law and the law are clear: the obligation to assist justice takes precedence. The legal injunction to provide information constitutes a valid legal basis for data processing, ruling out the need for customer consent. Banking secrecy cannot be invoked against a request for information lawfully made in the context of enforcement proceedings.
Contesting the seizure and recourse for the third party holder
The third party holder, like the debtor, has legal recourse to challenge the legality of the seizure and sale. Whether it is a procedural defect, an abusive seizure or a claim of ownership, it is crucial to know the time limits and the competent courts. Faced with a seizure that they consider to be irregular, the remedies available to third parties are not limited to challenging the act itself, but may also concern the way in which the procedure was conducted by the commissaire de justice.
Service of documents and time limits for challenges
The procedure is marked by a double notification. If the third party is present, the seizure document is first delivered to him in person. If the third party is not present, the document is served at a later date, sometimes by registered letter with acknowledgement of receipt. The debtor, for his part, must be informed by a "denunciation" of the seizure within eight days of the date of the seizure deed. It is from these notifications that the time limits for contesting the seizure start to run, failure to comply with which is punishable by nullity. Any dispute must be brought before the enforcement judge in the place where the seizure was carried out. Compliance with the time limits, which are counted in days and follow the rules of the Code of Civil Procedure, is imperative if the action is to be admissible.
Costs and financial implications for the garnishee
Finding yourself involved in a seizure and sale can entail costs for the holder. If he accepts custody of the goods, he may be entitled to remuneration, but this is not automatic and can be a source of dispute. In the event of opposition to contest the seizure, the holder may have to pay lawyers' fees to assert his rights before the enforcement judge. In principle, the costs of enforcement are borne by the debtor. However, if the seizure proves to be abusive or wrongful on the part of the creditor, the third party may seek reimbursement of the costs incurred from the creditor, or even a release of the measure. These complex financial issues underline the importance of legal advice to assess the risks and possible remedies.
Seizure for sale in the hands of a third party is a procedure whose complexity should not be underestimated. For the holder, this measure can be destabilising and fraught with consequences if he fails to fulfil his obligations. Our firm, with its extensive experience in enforcement, can help you analyse your situation and protect your rights. Please do not hesitate to contact us.
Sources
- Code of Civil Enforcement Procedures (in particular article R221 et seq.)
- Civil Code
- Code of judicial organisation
- Penal code
- Regulation (EU) 2016/679 of 27 April 2016 (RGPD)
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