Seizure before judgment
Generally speaking, before a creditor can seize your property, he must obtain a court judgment ordering you to pay. However, in some instances, the creditor may be entitled to seize your property before a judgment is handed down. The seizure before judgment is a safeguard. It may be carried out with or without the authorization of the court.
With court authorization
If your creditor doubts your intentions, he may ask the court to authorize the seizure of your property before judgment. However, he must convince the court that the debt is in jeopardy and that the seizure is essential.
When a seizure before judgment is authorized, it is carried out by means of an enforcement notice based in the garnisher’s instructions, supported by his sworn statement in which he confirms the existence of the debt and the facts that gave rise to the seizure. The statement must include the court’s authorization. The enforcement notice and the garnisher’s statement will be served by bailiff.
If the judge authorizes the seizure before judgment, the seized property will be entrusted to a third party unless the garnisher authorizes the bailiff to leave it in your custody. You are then prohibited from selling it, giving it away or allowing it to deteriorate.
If the judge refuses to authorize seizure before judgment, the trial continues.
Without court authorization
The seizure before judgment without the court’s authorization is allowed, for example when your creditor wishes to recover a property that he is claiming.
In a seizure before judgment, the bailiff serves you the enforcement notice containing your creditor’s instructions, accompanied by a sworn statement in which he confirms the existence of the debt and that facts that gave rise to the seizure. You may then oppose the seizure and the statement. The court will hand down a decision according to the proof submitted.
Within five days of the service of the enforcement notice, you may request the cancellation of the service because the allegations in the garnisher’s sworn statement are inadequate or false. If this proves to be true, the court will rescind the seizure. Otherwise, it will confirm the seizure and review its scope.
If you submit to the bailiff a sufficient guarantee, you may:
- avoid the removal of the property seized from your home;
- obtain a release;
- obtain the restitution of the seized property.
If the bailiff refuses the guarantee, you may go to court, which will decide on the matter. The amount of the guarantee is determined by the amount that your creditor is claiming or the value of the seized property.
Indeed, the purpose of a seizure before judgment, whether or not the court authorizes it, is not to sell the seized property but instead to place the property under legal protection until the case concludes. It is of a purely preventive nature.