Attachment for payment, a formidable enforcement procedure because of its immediate effect on claims, raises thorny issues in certain situations. After examining the foundations and standard procedures for seizure of assets for paymentIn this article, we take a closer look at situations that deserve special attention.
1. Attachment of assets and insolvency proceedings
The relationship between seizure of assets and insolvency proceedings is a complex area that is the subject of much debate. detailed explanation in a dedicated article.
Seizure prior to the opening judgment
An attachment for payment served before the commencement of insolvency proceedings resists the latter. Article L. 211-2 of the Code of Civil Enforcement Procedures is clear: " The occurrence of a judgement opening safeguard, receivership or liquidation proceedings does not affect this allocation."
The Court of Cassation confirmed this on 22 November 2002 (no. 99-13.935). The immediate attributive effect protects the creditor, even for successively enforceable claims such as rent.
Effects of the opening judgment on the denunciation
The situation becomes more complex when the opening judgment is handed down after the garnishee has been served but before the debtor has been notified.
If the judgment is handed down within the eight-day period allowed for notification, the notification must be made to the court-appointed agent if the debtor is divested. The Court of Cassation has ruled that " the seizure must be notified within eight days, failing which it will lapse, to the debtor at the head of his assets or, in the event of compulsory liquidation, to his liquidator "(Com., 4 March 2003, no. 00-13.020).
In the case of receivership, termination depends on the powers conferred on the administrator:
- Assistance assignment: notification to the debtor and the administrator
- Representation assignment: notification to the sole director
Conversion of a precautionary attachment into an attachment for payment
If a protective attachment has been made prior to the commencement of the collective proceedings but has not been converted into an attachment for payment, it can no longer be converted into an attachment for payment. The freeze on proceedings imposed by article L. 622-21 of the Commercial Code precludes this.
On the other hand, if the conversion took place before the opening judgment, it remains effective. This solution is the result of a significant reversal by the Cour de cassation (Com., 10 December 2002, no. 99-16.603).
Seizure by way of execution subsequent to the opening judgment
Under article L. 622-21 of the French Commercial Code, the general rule is that all means of enforcement are prohibited after the opening judgment.
Exception: claims properly arising after the opening judgment may be enforced if they remain unpaid (art. L. 622-17 of the Commercial Code). The creditor holding such a claim may levy a distraint order.
2. Specific rules for certain garnishees
Seizure in the hands of a public accountant
Seizures carried out in the hands of a public accountant are subject to special rules set out in articles R. 143-1 et seq. of the Code of Civil Enforcement Procedures.
A more formal approach is required:
- The deed must specify the seized claim (art. R. 143-2)
- Notification must be made to the accountant assigning the expenditure, failing which it is null and void (art. R. 143-3).
- The accounting officer must endorse the original attachment deed (art. R. 143-4)
The creditor may ask the authorising officer for information to identify the accounting officer (art. L. 143-1).
Seizure in the hands of a bank
From 1 April 2021, article L. 211-1-1 of the Code of Civil Enforcement Procedures will require electronic transmission of documents to banking institutions.
The attachment is only valid if it is served at the registered office of the establishment or the branch that holds the account (Civ. 2e, 22 March 2006, no. 05-12.569).
The deed makes all accounts unavailable for a period of fifteen working days (art. L. 162-1), the time required to settle outstanding transactions.
A minimum level of protection exists: the debtor retains a sum of money for maintenance (art. L. 162-2).
Seizure in the hands of a lawyer or a CARPA
Funds held by a lawyer on behalf of clients must be deposited with CARPA (Caisse Autonome des Règlements Pécuniaires des Avocats).
The Court of Cassation considers that only the CARPA is a garnishee (Civ. 2e, 9 January 2003, no. 00-13.887). The attachment must therefore be served on this fund and not on the lawyer.
The sums held by the CARPA are often earmarked, which can make them unseizable. For a full analysis of the claims declared by law unavailable or unseizableA complementary article is available. This issue has given rise to significant litigation.
3. Special status debtors
Debtor under protective supervision
The Code des procédures civiles d'exécution (art. L. 111-9) classifies the seizure of assets as an administrative act.
For the protected debtor, the rules vary depending on the measure:
- Safeguard of justice: the adult retains his capacity, the seizure can be directed against him
- Curatorship: service on the adult and his or her curator (art. 467 of the Civil Code)
- Guardianship: service only on the guardian
The denunciation follows the same rules, an unemancipated minor not having the capacity to receive it.
Undivided debtor
The personal creditors of an undivided co-owner cannot seize undivided property (art. 815-17 of the Civil Code). They may only take action against the share that their debtor is entitled to after partition.
A noteworthy ruling by the Court of Cassation on 15 May 2019 (no. 18-12.779) recalled that there is no indivision between usufructuary and bare owner. A creditor of the usufructuary can therefore seize the value of the usufruct from the sale price of the dismembered property.
Married debtors and matrimonial property regimes
For married couples, article 1413 of the Civil Code allows debts to be paid from joint assets.
However, article 1415 limits this rule in the case of loans and sureties: they commit only the spouse's own property and income.
In the case of a joint account, each joint holder must be notified of the seizure (art. R. 211-22). However, failure to notify the joint account holder does not invalidate the attachment (Civ. 2e, 7 July 2011, no. 10-20.923).
4. Cross-border situations
Principle of territoriality
Attachment is governed by the principle of territoriality of enforcement procedures. The Cour de cassation considers that " the garnishee, a legal entity, is established in France and either has its registered office there or has an entity there with the power to pay a debt owed to it by the garnishee debtor "(Civ. 2e, 10 December 2020, no. 19-10.801).
This means that the rent for a building located in France can be seized even if the owner and tenant are foreigners.
Meaning in overseas collectivities
Articles 660 to 662 of the Code of Civil Procedure set out specific rules for the service of documents in overseas collectivities such as French Polynesia and New Caledonia.
The bailiff must send the document to the competent local authority and send a copy by registered letter with acknowledgement of receipt to the addressee.
This scheme does not apply to the French overseas departments, which follow the rules in mainland France.
Debtor resident abroad
If the debtor resides abroad, the enforcement judge of the place where the measure is enforced has territorial jurisdiction (art. R. 121-2 of the Code of Civil Enforcement Procedures).
In theory, the eight-day notice period could be extended to take account of distance (art. 643 to 645 of the Code of Civil Procedure), but this solution is still debated in academic circles. To avoid any risk, it is best to respect the eight-day period.
International service also makes it more difficult to state the date on which the time limit for contesting the document expires in the notice, since this date depends on the actual delivery of the document to the addressee.
European or international rules on service of documents (EC Regulation no. 1393/2007 or the Hague Convention) also apply.
Sources
- Code of civil enforcement procedures: articles L. 111-9, L. 143-1, L. 162-1, L. 162-2, L. 211-1-1, L. 211-2, R. 121-2, R. 143-1 to R. 143-4, R. 162-2, R. 211-22
- French Commercial Code: Articles L. 622-17, L. 622-21, L. 631-12, L. 641-9
- Civil Code: articles 467, 815-17, 1413, 1415
- Code of civil procedure: articles 643 to 645, 660 to 662
- Cass. ch. mixte, 22 November 2002, no. 99-13.935
- Cass. com. 10 December 2002, no. 99-16.603
- Cass. com. 4 March 2003, no. 00-13.020
- Cass. 2nd civ. 9 January 2003, no. 00-13.887
- Cass. 2nd civ. 22 March 2006, no. 05-12.569
- Cass. 2nd civ. 7 July 2011, no. 10-20.923
- Cass. 1st civ., 15 May 2019, no. 18-12.779
- Cass. 2nd civ., 10 December 2020, no. 19-10.801
These specific situations, far from being anecdotal, require an in-depth understanding of the legal mechanisms and specialised expertise for optimum management. In addition to these specific features, the seizure-attribution procedure has many advantages. pitfalls and case studies which merit detailed analysis. For effective support in these complex distraint cases, it is advisable to call in a specialist lawyer.
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