Attachement of property
The role of the French bailiff in the enforcement process was established by the Law of July 9, 1991 which provides that they can proceed to enforced execution and provisional seizure of the debtor’s property/assets.
The attachment of property is the legal process of seizing property to ensure the satisfaction of a judgment.
An attachment request must be presented to the judge of execution (juge de l’exécution) and it can concern movable or immovable property.
The decision of the judge authorizing the creditor to seize the debtor’s property must be notified to the debtor by a bailiff.
Attachment of tangible movable property
In France, bailiffs can seize and subsequently sell tangible movable property. Moveable property consists of things that can either move themselves or be moved in space. Tangible personal property can be anything with physical existence. These movables can be seized/attached in different ways:
- Seizure for sale a.k.a. attachment of property
Bailiff’s can enforce a judgment through the seizure and sale of the debtor’s property. Tangible movables are generally sold in auctions and the collected amount is used to cover the debt owed to the creditor and the costs of the execution.
However, some assets are exempt from collection efforts. Also, in order to collect a debt through attachment, several conditions must be met.
- Not all tangible movables can be seized;
- A payment order must be issued and notified to the debtor.
The competent bailiff can attach the debtor’s personal property after a period of eight days following the notification of the payment order.
The bailiff will complete a list of the debtor’s property and subsequently select the items that he intends to sell. The bailiff will then issue a writ of attachment stating the legal inaccessibility of the concerned property.
The sale of property can be carried out by mutual agreement or through a compulsory procedure (e.g. public auction).
- Apprehension attachment
This type of attachment allows the creditor of an obligation to deliver or restitute a tangible personal property to enforce such delivery/restitution or demand an injunction.
In practice, an enforcement order to deliver or return the specific property is served to the debtor. Once the attachment operations have been properly carried out, the property is seized by the bailiff and delivered to the creditor.
- Attachment of motorized land vehicles
Two types of attachment procedures can be used when motorized land vehicles are concerned.
1°) The declaration to the Prefecture deprives the debtor of the right to dispose of the vehicle and prevents the latter from selling it. This procedure is especially effective where for practical reasons the vehicle can’t be located.
2°) The immobilization of the debtor’s vehicle can also be ordered. This procedure is generally used when the vehicle is localized.
- Attachment and sale of assets placed in a safe
This specific procedure allows the creditor to seize items that have been previously placed in a safe.
In practice, the bailiff formally notifies the owner of the safe (e.g. bank, hotel etc.) that an attachment shall take place. The bailiff will subsequently dress an inventory of the items found in the safe and select the ones that he/she intends to seize and sell for the purpose of reimbursing the creditor.
- Attachment of unharvested crops
This specific procedure, which is covered by articles 134 to 138 of the Decree of 31 July 1992, allows the creditor to collect the debtor’s crops. The collected crops will be sold in order to recover the due amount. Standing or unharvested crops can be natural or industrial.
Even though standing crops can be thought of as immovable property, they are regarded as movables by anticipation. Thus, the crops become tangible personal property at the time of their separation from the soil.
The creditor must have an enforceable order/title which not only recognizes a claim against the debtor but also establishes its amount. The creditor’s debtor must be the owner of the crops.
Moreover, the attachment must be executed within a six-week interlude preceding the customary ripening period.
Attachment of intangible movable assets
Intangible personal/movable property only exists as an intellectual notion and has no material existence (e.g. company shares). These specific types of movables can be seized through several different procedures. The choice of the procedure will depend on the specificities of the intangible property.
- Attachment of transferable securities and shareholder rights
The MiFID II directive defines “transferable securities” as securities which are negotiable on the capital market. Furthermore, shareholder rights include receiving dividends for each share. The attachment procedure allows the creditor to seize the assets belonging to the debtor and sell them in order to collect the amount that is owed.
Such assets are placed in the custody of a third party (e.g. a corporate body). Under this procedure, the attachment order is firstly served on the relevant third party. The debtor shall be consequently informed.
Following the notification of the attachment, the assets become untransferable and can no longer be disposed of. In the absence of an amicable agreement, these assets will become subject to compulsory sale.
- Attachment of funds held by third parties
This procedure, a.k.a. saisie-attribution in French, allows the creditor to acquire the receivable that his debtor holds against his own debtor (the third party attached).
Funds held by third parties can only be attached if certain conditions are met:
The creditor must possess a writ of execution;
The creditor’s debtor must hold a receivable against a third party;
The third party must owe a sum of money.
- Attachment of a bank account
When the attachment involves a pecuniary claim the creditor has the possibility to seize the debtor’s bank account in order to collect the due sum.
For example, a bailiff can ask the Bank to freeze all of the debtor’s accounts. The Bailiff must then notify the debtor of the attachment of his bank account within the deadline of an eight day period following the seizure.
- Recovery of maintenance pensions
Recovery of subsistence pensions refers to the procedures allowing a creditor to seize a maintenance pension.
Such recovery can be carried out directly or through a public accountant.
- Direct payment of the maintenance pension
This procedure allows the creditor to obtain direct payment by a third party (the debtor’s debtor) owing an established amount to his debtor.
- Public recovery of maintenance pensions
This specific procedure allows the Public Treasury to recover maintenance pensions on the creditor’s behalf. In practice, the creditor will issue recovery request. The Prosecutor in charge shall examine the request and decide whether to follow through with it.
- Attachment of wage
This procedure allows the creditor to directly attain the debtor’s wage.
Attachment of real/immovable property
As mentioned earlier, the division of property rests on the concept of physical mobility. Traditionally, real/immovable property is considered to be stationary in space.
Enforcement against real property allows the creditor to place the debtor’s property under the control of a Court. The property shall be sold and the creditor reimbursed. The sale may be amicable or compulsory.
This procedure is subject to several conditions. Initially, the claimant (creditor) must possess a writ of enforcement confirming the existence of a specific debt. The competent jurisdiction is the Court of the district where the property is located.
Within the framework of this procedure, the debtor must be represented by a lawyer.