The special status of vehicles in repossessions

A vehicle often represents an accessible asset for a creditor seeking to recover a debt. The foreclosure has its own special features when it comes to land-based motor vehicles. There are a number of rules governing this procedure, ranging from relative unseizability to specific practical arrangements.

Seizure of the vehicle

The seizability of a motor vehicle raises complex legal issues, particularly when the vehicle is a working tool for the debtor.

The vehicle as a work tool

The Code of Civil Enforcement Procedures states thatunseizability of assets necessary for the life and work of the debtor and his family. Article L. 112-2, 5° specifically protects the work instruments necessary for the personal exercise of the professional activity.

A vehicle can therefore escape seizure if it can be shown that it is an essential work tool used exclusively for professional purposes. The professional nature of the vehicle must be intrinsic and limited to the exclusive activity of the person from whom it was seized.

Case law strictly applies this condition. In a decision dated 15 December 2005, the Court of Cassation ruled that the vehicle used by a doctor to travel to his practice was not a work instrument necessary for the personal exercise of his professional activity (Cass. 2e civ., 15 Dec. 2005, no. 04-14.600).

Conditions under which a vehicle cannot be seized

For a vehicle to be considered exempt from seizure, two conditions must be met:

• it is essential to the business
• its exclusively professional use

The issue of commuting between home and work has divided case law. In a judgment of 6 April 2006, the Court of Cassation accepted that a vehicle used by a debtor looking for work and living in a town with a major public transport infrastructure could be subject to a seizure for sale (Cass. 2e civ., 6 Apr. 2006, no. 04-16.764).

Conversely, the car of a sales representative, a doctor making home visits or a private nurse can be protected from seizure.

The relativity of elusiveness

Article R. 112-2 of the Code of Civil Enforcement Procedures provides for exceptions to this protection. A vehicle, even one required for business purposes, may be seized in several cases:

1. For payment of the purchase price
2. If it is located elsewhere than at the debtor's place of work or home
3. If it is considered a valuable asset because of its luxurious nature

Whether or not a vehicle qualifies as a "luxury vehicle" is left to the discretion of the judge, and depends on various criteria such as make, model and market value.

It is also important to consider the impact of insolvency proceedings and overindebtednesswhich may modify the possibility of seizure even for assets that are usually seizable.

Vehicle-specific procedures

The seizure of vehicles benefits from a special procedural regime, adapted to their mobility.

Seizure and sale with immobilisation

According to article R. 221-19 of the Code of Civil Enforcement Procedures, a bailiff who finds a motorised land vehicle during seizure operations may immobilise it immediately.

This fixed asset, which is ancillary to the seizure and sale, fulfils two functions:

• exert psychological pressure on the debtor
• ensure the preservation of the seized property by reinforcing the duty of custody

The bailiff can immobilise the vehicle by any means that does not cause any damage, such as a "Denver shoe", or by deflating the tyres.

This related immobilisation is only possible if the vehicle is on the premises occupied by the debtor or in the hands of a third party holder.

Immobilisation as an autonomous measure

When the vehicle is outside the debtor's premises, such as on the public highway, the bailiff must use an autonomous seizure by immobilisation procedure.

This procedure is governed by articles R. 223-8 et seq. of the French Code of Civil Enforcement Procedures. It reverses the usual order of acts: the immobilisation precedes service of the summons to pay, which then opens the sale procedure.

The Court of Cassation has ruled that there is nothing to prevent the seizure for sale of a vehicle that has previously been seized by immobilisation (Cass. 2e civ., 20 Nov. 2003, no. 01-15.192).

Practical formalities

The immobilisation of a vehicle has a number of technical specificities:

• The bailiff cannot enter the vehicle even if the doors are not locked.
• The inventory is limited to the apparent contents visible from the outside
• The report must mention the make, registration, colour and any damage.

From 1 January 2023, Decree no. 2021-1888 of 29 December 2021 amends article R. 223-13 of the Code of Civil Enforcement Procedures concerning the immobilisation of a vehicle given to a pledgee. The decree sets out specific procedures for enforcing the pledge.

Intervention by the enforcement judge

The enforcement judge intervenes in a number of cases, particularly where there is a dispute over whether the vehicle is exempt from seizure.

La dispute over the seizability of a vehicle must be lodged within one month of service of the writ of attachment, in accordance with article R. 221-53 of the Code of Civil Enforcement Procedures.

However, the Court of Cassation requires the debtor to have been informed, in the attachment deed, of the procedures and the time limit for taking action (Cass. 2e civ., 16 Dec. 2004, no. 03-12.430).

The judge determines whether the vehicle really constitutes an instrument of work necessary for the personal exercise of the debtor's professional activity. This assessment depends on the circumstances of each case.

Case law shows that judges are more protective of the vehicles of craftsmen, travelling medical professionals and salespeople than those of employees simply travelling to work.

Faced with these challenges, the assistance of a lawyer specialising in enforcement procedures is invaluable in navigating these complexities and defending your rights as best you can.

Sources

• Code des procédures civiles d'exécution, articles L. 112-2, 5°, R. 112-2, R. 221-19, R. 223-8 et seq., R. 221-53
• Cass. 2nd civ., 15 Dec. 2005, no. 04-14.600
• Cass. 2nd civ., 6 Apr. 2006, no. 04-16.764
• Cass. 2nd civ., 20 Nov. 2003, no. 01-15.192
• Cass. 2nd civ., 16 Dec. 2004, no. 03-12.430
• Decree no. 2021-1888 of 29 December 2021 amending article R. 223-13 of the Code of Civil Enforcement Procedures
• JurisClasseur Procédure civile, fasc. 1600-60, "Saisie-vente - Conditions", by Nathalie Casal