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Judicial Collection

If the amicable procedure fails, recourse to the judicial collection procedure becomes unavoidable. Unlike the amicable procedure, the judicial procedure requires referral to a Court and aims to force the debtor to pay.

In order to guarantee payment in the event of a favorable court ruling, it is sometimes advisable to take precautionary measures beforehand.

PRECAUTIONARY MEASURES

The aim of precautionary measures is to guarantee payment of the debt, by limiting the debtor’s powers over his own assets. The aim is to “protect” the debtor’s assets pending a final court decision, to ensure the effectiveness of enforcement measures taken once the decision has been handed down.

In principle, the creditor must file an application with the enforcement judge of the competent court. The latter will hand down its decision in the form of an order.

However, the creditor is exempted from seeking the authorization of the execution judge in the following cases:

If he is in possession of a writ of execution.
If he is in possession of a court decision that is not yet enforceable.
If he is the bearer of an accepted bill of exchange, promissory bill or cheque.
If he has a claim for unpaid rent.

There are two types of precautionary measures:

1°/ Precautionary seizures.

This procedure enables a creditor to seize a debtor’s assets as a preventive measure in the event of a threat to the recovery of his debt. Seizures may be carried out on any type of asset, with the exception of :

Income from work
Non-competition indemnities
Buildings
Property held in joint ownership

2°/ Judicial sureties.

They provide the creditor with an interest in the debtor’s property, and ensure that the creditor receives priority payment from the proceeds of the sale of that property. Judicial sureties can apply to any type of asset:

The real estate.
Business funds.

Shares and other securities.

L’INJONCTION DE PAYER

This legal procedure has the advantage of being simple, fast and inexpensive (the application is free before the Judicial Court, and the costs of proceedings before the Commercial Court are around €30).

Il s’agit d’une procédure non-contradictoire, ce qui signifie que le débiteur ne sera pas entendu par le Juge.

The injunction to pay is formulated in the form of a request, consisting of a CERFA form and the documents needed to establish the existence of the debt and the absence of payment (invoice, ledger, formal notice, etc.).

If the judge finds in favor of the creditor, he issues an injunction to pay.

However, although it has many advantages, this procedure is not necessarily relevant, because :

It presupposes that there is no doubt as to the existence of the claim, failing which the judge will not grant the request,

The debtor may oppose the payment order. A new dispute procedure will then be opened. Thus, when the unpaid amount is due to a dispute, it is virtually certain that the debtor will lodge an objection. Recourse to this procedure is therefore irrelevant in the case of a dispute that has already arisen.

REFERE-PROVISION

A writ of summons for provisional payment is an adversarial procedure before the interim relief judge (Juge des référés). Like the injunction to pay, it enables the creditor to make a claim for rapid payment of his debt (between 1 and 2 months).

This procedure can only be initiated if there is no serious dispute as to the existence or amount of the claim.

The judge then issues a summary order, which the creditor can serve on the debtor to obtain payment of the debt, and then enforce, if necessary by force.

This procedure has the advantage of being quicker than a procedure on the merits.

However, the summary order is only provisional, until the case is referred to a court on the merits.

SUMMONS FOR PAYMENT ON THE MERITS

The summons for payment on the merits is the standard procedure. Unlike summary proceedings, it can be initiated in any circumstances, even when there is a serious dispute over the existence or amount of the debt.

A writ of summons for payment on the merits is more costly and time-consuming, but allows you to obtain a final decision, damages and a writ of execution. It’s a real trial between the creditor and the debtor.

JURISDICTION OF THE COURTS

If the debtor is a professional or if the claim originates from a commercial contract, and whatever the amount of the claim, the competent court will be the Commercial Court .

If the debtor is a private individual, the Tribunal Judiciaire or Tribunal de proximité will have jurisdiction.

In principle, the court with territorial jurisdiction is that of the defendant’s registered office (in the case of a company) or domicile (in the case of an individual). The Court of the place of delivery of the goods or the place of performance of the service may also have jurisdiction.

As part of a contract, it is possible to agree in advance which court will have jurisdiction. However, this jurisdiction clause is only valid if the parties are both merchants.

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ENFORCEMENT MEASURES

Once a court decision has been obtained, and if the debtor fails to pay the sums due voluntarily, the creditor can resort to forced execution measures, in particular seizures. There are several types of seizure.

– Seizure-attribution

This is a procedure enabling a court-appointed official to seize the debtor’s assets on the basis of a court order served on the debtor, even when these assets are held by a third party. The seizure can also concern sums deposited in a bank account.

This procedure is appreciated by creditors, because as soon as the sums requested exist in the debtor’s assets, there is an “immediate attributive effect”: the debtor’s property becomes the property of the creditor.

Attachment of receivables cannot be set up once bankruptcy proceedings have been initiated against the debtor. On the other hand, if the seizure-attribution has been implemented prior to the pronouncement of a judgment opening collective proceedings, the procedure can be completed.

– Seizure and sale (stock)

As the name suggests, the aim of seizure and sale is to obtain payment of the debt through the sale of seized assets belonging to the debtor. It can be carried out on assets held by a third party.

An amicable sale should then be initiated, or an auction if the amicable sale fails.

Unlike seizure-attribution, seizure-sale can only be implemented after the debtor has been served with a summons to pay.

– Attachment of earnings (or “wage attachment”)

This procedure enables a creditor with a writ of execution to seize the amount of his claim directly from the salary received by the debtor, before it is paid to him. The seizure is ordered by the enforcement judge of the Judicial Court.

This seizure concerns the salary stricto-sensus, but also bonuses and salary accessories (e.g. paid vacations). Remuneration received during suspension of the employment contract, such as sick leave or maternity leave, is not taken into account.

The amount that can be seized, i.e. the fraction of salary that can be seized, is limited according to the annual amount of remuneration, in order to leave the debtor a “minimum to live on”. The scale for wage seizures is set at the end of each year by decree for the following year (decree for 2023 : decree no. 2022-1648 of December 23, 2022).

Please note: the seizure of wages procedure must be preceded by an attempt at conciliation. If conciliation is successful, the debtor undertakes to reimburse the creditor on a monthly basis. If the conciliation fails, a procès-verbal de non-conciliation is drawn up, at the end of which the court clerk proceeds with the seizure of wages.