5 tips for collaborating with your accountant

Author: Pauline THIBOUT of the collection agency CAP RECOVERY.

The right to the execution of a court decision is an integral part of the right to a fair trial guaranteed by the European Convention on Human Rights. However, this right comes up against other fundamental rights (respect for private life, right to housing, right to dignity, etc.) which complicate the execution of a decision.

A noter également qu’il existe une immunité d’exécution pour les personnes de droit public. Ainsi, l’État et ses services, les collectivités territoriales, leurs groupements, et les établissements à caractère administratif bénéficient d’une immunité d’exécution attachée à leur statut : il ne peut être mis en œuvre de voie d’exécution à l’encontre de la personne morale de droit public.

 

As far as private individuals are concerned, a number of obstacles exist, but these are greater for individuals, who are protected in a number of respects by the legislator.

The elusiveness

This is a list of types of property that the law renders unseizable. This means that a judicial commissioner (formerly a bailiff) cannot act on these assets to compel the condemned debtor.
These exemptions apply to individual debtors, including individual entrepreneurs who operate in their own name. They do not apply to legal entities.

The assets concerned are as follows:
  • Tangible property necessary to the life of the seized debtor and his family.
    This fairly broad definition includes, for example, toiletries, clothing, foodstuffs, which allow the preservation and preparation of food (fridge, freezer, hotplates, etc.), a minimum of crockery, a table to take meals with chairs, beds, a washing machine, furniture for storing laundry, children's objects, books and objects necessary for the pursuit of studies, personal or family souvenirs, heating equipment, etc.
  • The work tools necessary and indispensable for the personal exercise of the professional activity.
    For example, a computer, a telephone, various tools and equipment...
  • Maintenance claims.
    These include alimony received for the upkeep and education of children, or alimony paid by parents to a child under study. These payments are exempt from seizure.
  • Social benefits Housing benefits, RSA and family allowances, for example, are all concerned.
  • Objects essential for the disabled or the care of the sick.
  • Furniture and real estate are required by professional unions for their meetings.
  • Assets declared unseizable by a testator or donor.
  • The earnings shares are equivalent to the RSA for a single person.
  • Bank account seizures: a sum equivalent to the RSA for a single person is automatically left at the disposal of the individual debtor.
In the event of seizure of earnings or bank account, a sum equal to 607.75 euros must be left at the disposal of the seized debtor. This sum is regularly updated in line with changes in the RSA.

Social security benefits and alimony claims are always exempt from seizure, whatever the amount, even if the sums are saved, provided that the seized debtor can prove the origin of the funds.

There is a ceiling on the minimum portion of wages to be left available for seizure. If the seized debtor has several employers, the unseizable portion will remain at 607.75 euros for all salaries combined.

For bank accounts, the unseizable portion is available only once a month.

In the case of other goods, the exemption from seizure ceases if the goods are in sufficient quantity, if they have a definite value due to their materiality, rarity, or age, or if they are located in a secondary residence. The on-site appraisal by the commissioner of justice is therefore important.

If a seizure is carried out on assets that the debtor considers to be unseizable, the debtor always has the option of contesting the seizure before the execution judge.

Procedural obstacles

Enforcement of a court decision can be suspended by the debtor exercising a legal remedy. Remedies may concern the court decision as such: opposition, appeal.

Opposition and appeal are in principle suspensive of execution, which means that no seizure can be carried out if one of these appeals is lodged. The time limit for appeal and the appeal itself are suspensive of execution.

However, there is another principle that overrides the first: court decisions are, as a matter of principle, provisionally enforceable. This means that even in the event of an appeal, the enforcement of a court decision can be pursued by seizure.

There are exceptions to this principle: the law may provide that certain decisions are not subject to provisional execution (this is the case, for example, in personal law); the judge may, even on his own motion, set aside provisional execution of his decision if he considers it incompatible with the nature of the case.

A judicial commissioner commissioned to enforce a court decision will therefore first have to verify whether or not the decision is enforceable.

Appeals may also be lodged against the enforcement of the decision itself when the debtor lodges a claim with the enforcement judge to contest the measures taken or request a delay in payment.

Referral to the execution judge does not automatically suspend further execution. However, if the judicial commissioner carries out seizures while a request for a delay is in progress, he will be liable, and so will the creditor, for abusive seizure.

On the other hand, a dispute concerning an identified seizure (e.g., seizure for sale) does not prevent the implementation of another seizure (e.g., seizure for allotment), as the procedures are independent, unless the reason for the dispute concerns the claim itself or the writ of execution (amount, enforceability of the writ, etc.).

Debtor's situation

If the debtor is in a complicated financial situation, several events can suspend enforcement: a request for a time limit, over-indebtedness proceedings, or collective proceedings.
  • Granting payment deadlines
    Creditors are never obliged to accept payment terms agreed out of court. On the other hand, payment terms granted by a judge are binding. Once enforcement of a court order has begun (either by issuing a writ of seizure or by issuing a summons to pay, as the case may be), requests for payment deadlines must be brought before the enforcement judge. Prior to this, and as long as enforcement has not been initiated, requests for time limits are brought before the competent judge, depending on the amount of the request and the nature of the case (judicial court, commercial court). Once the decision in favor of the debtor has been rendered, no further execution can be carried out until the deadlines have been met.

  • Over-indebtedness
    The over-indebtedness procedure allows an individual debtor to benefit from a suspension of proceedings and a restructuring of debts. This procedure is carried out by a special commission at the Banque de France. The admissibility of an over-indebtedness application entails the suspension - and prohibition - of enforcement proceedings against the debtor's assets. As for the measures adopted, the over-indebtedness commission can impose "rescheduling of debt payments", which entails suspension of enforcement proceedings, or "suspension of payment of claims other than maintenance claims for a maximum period of two years". The measures granted by the Banque de France are binding on the creditors, who nevertheless have the option of opposing them by lodging an appeal with the competent judge.

  • Collective proceedings
    In the event of economic difficulties for a debtor company, the creditor may be subject to collective proceedings. The decision to open safeguard, reorganization, or compulsory liquidation proceedings suspends or prohibits all legal action by creditors of sums of money whose claims arose prior to the said decision. It also prohibits the pursuit of enforcement measures. The creditor is then treated collectively (hence the name "collective proceedings") with the other creditors under specific procedures led by the mandataire judiciaire or liquidator.
These developments show that the enforcement of a court decision is not a foregone conclusion and can run up against a large number of obstacles. These difficulties are justified by the need to strike a balance between creditors' rights and debtors' rights, which are often in perfect opposition. The Commissaire de Justice is the professional who guarantees this balance.

 

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