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La seizure of partnership rights and securities is a specific procedure enabling a creditor to seize certain intangible assets belonging to the debtor. For a a comprehensive understanding of how to capture intangible rightsFor example, a company's shares, stocks and bonds can have a high monetary and asset value, making them an attractive target for debt collection. These rights can have a high monetary and asset value, making them an attractive target for debt recovery.
This article explains the main aspects of this procedure, its specific features and the remedies available to the debtor.
Types of seizure: precautionary seizure and seizure for sale
There are two types of seizure available to creditors in respect of shareholders' rights and securities: the precautionary seizure and the foreclosure. For explore the differences between these two formsHowever, it is important to note that each procedure has its own requirements and particularities.
Preventive seizure
La precautionary seizure is a preventive measure. It makes it possible to freeze the debtor's assets without selling them immediately. This procedure is often used when the creditor fears that the debtor will no longer be able to pay his debt before the courts have ruled.
To obtain a precautionary seizure, the creditor must apply for a judicial authorisation to the enforcement judge. This request is made when the claim is well-founded but has not yet been paid. liquid and due. Once the seizure has been made, the creditor must notify the debtor within eight days. If the judge considers that the conditions for the seizure have not been met, he can order the debtor to pay the balance. release for entry.
The seizure may be transformed into foreclosure as soon as the creditor obtains a enforcement order.
Seizure and sale
Unlike the seizure of property for safekeeping, the foreclosure allows the creditor to sell the debtor's assets to recover the debt. This procedure is only possible if the creditor has a enforcement order establishing its claim.
The creditor seizes the property by serving a notice of seizure on the debtor. writ of attachment the company issuing the shares or securities. This deed must contain certain mandatory details, such as a reference to the writ of execution, failing which it will be null and void. The debtor must also be informed within eight days of the seizure, failing which the procedure will lapse.
Seizure restores the debtor's financial rights unavailable. This means that the debtor can no longer receive the dividends associated with the seized shares. However, the debtor's political rights, such as the right to vote at meetings, remain intact.
Assets subject to seizure
The securities and shares are the main assets targeted by these seizures. However, certain rights are elusiveThis is particularly true of assets that are strictly linked to the debtor. For example, shares allocated to employees as part of a share ownership scheme are inalienable and therefore cannot be seized. Similarly, industrial shares, which are specific company shares, are also exempt from seizure.
On the other hand, shares subject to a simple conventional inalienability can be seized. This is the case, for example, for the shares of certain Simplified joint stock companies (SAS)The Articles of Association may provide for shares to be inalienable for a maximum period of ten years.
Sale of shares and securities
The sale is the normal outcome of a foreclosure. There are two main forms of sale: the out-of-court sale and the judicial sale.
Out-of-court sales
La out-of-court sale allows the creditor and debtor to agree on a sale price for the seized shares. This option is often preferred to avoid the additional costs and delays of a judicial sale. However, it can only be done with the agreement of the debtor.
Judicial sale
If no agreement is reached, the shares are sold by public auction. The procedure is more complex in the case of sharesbecause they are not as liquids than securities. In addition, in certain cases, a approval procedure must be complied with prior to the sale of shares, particularly when required by the company's articles of association.
Once the sale has been completed, the proceeds of the sale are divided between the creditors who have foreclosed before the sale. Only seizing creditors or opponents who made themselves known before the sale can assert their rights to the price obtained.
Recourse by the debtor
Debtors have a number of ways of challenging the seizure of their shareholder rights or securities. In particular, they can prove that the debtor's claim has already been paid or that it is unjustified. Such challenges must be made within one month of service of the attachment order.
The debtor may also request release of the seizure by depositing a sum sufficient to cover the debt with the Caisse des dépôts et consignations.
Conclusion
La seizure of partnership rights and securities is a complex but effective procedure for recovering debts. It allows creditors to take action against intangible assets that have significant value. The procedure is governed by strict rules that guarantee the rights of both the creditor and the debtor.
The seizure of partners' rights and securities is a powerful tool for creditors, while preserving protection mechanisms for debtors. To make the best use of these procedures, you can benefit from a expert legal support is often essential.
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