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Consumer loan Everyone is normally required to pay their debts, and it is of course not us, nor any other legal professional, who would come to contradict or minimize the scope of the famous article 2284 of the Civil Code, under which “Anyone who is personally bound is bound to fulfill his commitment on all his movable and immovable property, present and future”.
However, just as the rule of law and democracy do not allow public outrage to justify the hasty execution of an individual suspected of having committed the most heinous crime, our society does not accept that one who considers himself the creditor of a sum of money resorts to all maneuvers to obtain reimbursement.
Such a capital principle nevertheless deserves to be forcefully reminded to a handful of societies, so much do they seem to consider that they are evolving in the middle of the Far West, where the law of the strongest once encouraged the establishment of terror to achieve its objective. in defiance of any rule or law .
Executory titles for seizure: –
Who has not heard, in fact, in recent years, the generalization of practices consisting in exerting maximum pressure on a given person, trying to reach them at any time, at home or at home? of work, by threatening her, by the use of an approximate pseudo-legal jargon, to send her an armada of bailiffs who will seize almost everything in her possession, and by seeking to sully her reputation with her relatives and her employer?
Often at the limit of legality, sometimes manifestly illegal, these practices are all the more illegitimate as they are most often aimed at obtaining the payment of old debts which, at best, can no longer be the subject of legal proceedings. . in court, or, at worst, are purely and simply legally extinguished!
This is why recalling the most fundamental rules in terms of non-payment seems essential to us, because it is by being aware of one’s rights that one can analyze the merits of an approach and possibly dissuade, or even attack. . , author of practices that can be both reprehensible and harmful.
In concrete terms, under what conditions can property belonging to me or money from my bank account be seized in order to allow the full repayment of a loan that I did not want or was unable to repay in full?
Request for legal assistance: –
The first rule, from which we will develop our reasoning, is the following: a seizure can only be carried out by a bailiff and on the basis of an enforceable title.
In this regard, Article L111-3 of the Code of Civil Enforcement Procedures (former Article 3 of Law No. 91-650 of July 9, 1991 reforming civil enforcement procedures) provides that:
“Only enforceable titles constitute:
1° The decisions of the courts of the judicial order or the administrative order when they have enforceable force as well as the agreements to which these courts have conferred enforceable force;
2° Foreign acts and judgments as well as arbitral awards declared enforceable by a non-appealable decision suspending the execution;
3° Extracts from the conciliation report signed by the judge and the parties;
4° Notarial deeds bearing the enforceable formula;
5° The document issued by the bailiff in the event of non-payment of a check;
6° Titles issued by legal persons under public law qualified as such by law, or decisions to which the law attaches the effects of a judgment. »
In a simplified way, it follows that the debts resulting from a loan not fully reimbursed can in principle give rise to the seizure of goods or money from a bank account only after a definitively closed trial. , unless the loan was concluded before a notary.
Consequently, when an entity asks you for the payment of such sums, and mentions the possibility of having recourse to a Bailiff if you refuse to cooperate, the first of the answers to oppose is that of asking if it is in possession of an enforceable title . , and if so, to send it to you.
On this subject: do not be fooled by the sending of letters which would imply a possible cooperation with a company, because even the reception of letters which seem to come from a Bailiff does not in any way guarantee the possession of a title. enforceable.
And for good reason: in about 90% of cases, organizations using this type of practice simply do not have one, and cannot obtain one.
The reason for such an impossibility is quite easy to understand: the payment of money debts can only be continued for a certain period of time, called the foreclosure period, which in such circumstances is most often expired.
In terms of consumer credit , Article L311-37 of the Consumer Code provides that:
“The actions for payment committed before him on the occasion of the default of the borrower must be formed within two years of the event which gave rise thereto, on pain of foreclosure”.
It follows that if the action has not been brought within two years from the first unpaid amount, it is no longer possible to claim any payment in court, and therefore to consider seizure. , unless the contract was concluded before a notary.
However, such a period should not be confused with the debt limitation period, which is currently five years, under article 2224 of the Civil Code, which provides that:
“Personal or movable actions are prescribed by five years from the day on which the holder of a right knew or should have known the facts enabling him to exercise it. »
Indeed, if the foreclosure period only prevents the payment from being sued, the limitation period results in an outright extinction of the debt.
Concretely, the result, in terms of consumer credit, is that:
– within a period less than or equal to two years from the first default of payment, the creditor may obtain voluntary payment from his debtor or bring legal action;
– within a period of more than two years but less than five, the creditor can still obtain voluntary payment but can no longer take legal action;
– after more than five days, the creditor can no longer receive voluntary payment or bring legal action.
You will have understood: once the foreclosure period has expired, the creditor has every interest in putting pressure on the debtor in order to obtain payment from him outside of any trial.
Why is that?
First of all, because within a period greater than two years but less than five, the execution of a payment by the debtor, even partial, may be legally received, and the express acknowledgment of the debt will have the effect of restore the right to sue.
Then, because within more than five years, this will be the only solution remaining at his disposal, although totally illegal: insofar as the debt no longer exists, it cannot theoretically be paid, so that the realization of this theoretically entitles its author to reimbursement, but very often the organization will then, at this stage, be less cooperative.
It should also be specified, in this respect, that if the limitation period was, before the entry into force of the law of 17 June 2008, thirty years, it is now only the new period that applies. applies, insofar as all claims arising before the entry into force of the law have seen their period shortened to a maximum of five years from June 19, 2008, and have therefore all been prescribed on June 19, 2013 .