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What to do if you are not a Debtor and the bailiff takes your property

Many people face a situation in which their belongings are taken by a court bailiff in the course of enforcement proceedings. This is for various reasons. For example, as a result of the fact that you live with a debtor in one flat or even occupy the premises where the debtor used to be.

The court bailiff runs the so-called field activities in the course of which he occupies inter alia movables located in the premises indicated as the residence of the debtor. The bailiff then writes down a seizure report to which, of course, you can make an annotation.

That a particular item is not the property of the debtor

debtor

However, this does not automatically lead to the release of things from execution.

So what should be done in a situation where enforcement proceedings are not carried out against us, and the bailiff has taken, for example, a TV set, which is our property? Some people in this situation choose the wrong solution and file a complaint about the actions of the court bailiff demonstrating their ownership of the object occupied. This leads to losing the case and losing the right of ownership.

Meanwhile, in this type of case, as described above, it becomes necessary to bring the so-called anti-enforcement action (more precisely the variation of this action, called intervention) based on the regulation contained in art. 841 of the Code of Civil Procedure (hereinafter referred to as the Code of Civil Procedure).

According to art. 841 § 1 of the Code of Civil Procedure, a third party may, by way of an action, demand the release of a seized object from enforcement if the enforcement of the execution violates its rights. In a simplified way, it can be written that a third party is someone who is not an enforcer in this type of situation. The execution directed to a given item infringes the rights of such a third party if it is the owner of the seized thing.

The owner of the property should therefore bring an action to the common court in such a case. The de facto property of a non-debtor should be proved. This circumstance can be demonstrated by any means of proof, however, the proof of the document, and hence the purchase VAT invoice, should be the most important in this situation.

Obviously, the majority of non-business people do not have invoice proofs. Then, of course, you can use a receipt, but it certainly can not be an independent proof. Therefore, it would also be necessary to attach a bank account statement if the payment was made by means of a payment card or an indication of witnesses who could confirm the fact of purchasing a specific item by a specific person.

In the case of actions of this kind, two more issues are very important, which in some way merge. Firstly, in accordance with art. 841 §3 of the Code of Civil Procedure, in principle , an action must be lodged within one month from the date of learning about the seizure of things . Exceeding this deadline results in the dismissal of the claim, and the reason for the failure is devoid of the slightest significance. The deadline is also not subject to restoration. Therefore, it is important to keep this in mind first and fit in the given time, regardless of other circumstances.

The second issue is to call the creditor to release the seized object from enforcement

creditor

(the creditor will, in principle, be a defendant in the intervening action). For evidentiary purposes, this must be done in writing by registered mail. This is important for demanding reimbursement of costs of proceedings caused by an action based on art. 841 CCP. If the creditor did not receive the summons and would consider the action on the first action, then he could then demand, despite the actual loss of the case, reimbursement of costs under Art. 101 kpc

However, bearing in mind the monthly deadline for bringing an action, it should be remembered that the creditor should be called as soon as possible to enable him to reply within the aforementioned period, and secondly to not engage with the creditor in unnecessary polemics, not to miss the monthly deadline.

In another case (in the situation of ineffective expiry of the deadline) we no longer have any possibilities to release the property belonging to us from enforcement by way of coercion. The only thing left then is to ask the creditor politely, who does not have to give his consent.

The French population increasingly over-indebted

It’s a fact, the French population is in debt. The Banque de France has noted this in its quarterly reports for several years now. An improvement in the situation, however, emerges from the latest over-indebtedness barometer published in June 2015: the number of files filed by individuals with over-indebtedness commissions between July 2014 and June 2015 was slightly down (-2.6%).

A decline that must nevertheless be relativized in the face of the seriousness of reality. Since 2010, nearly 987 000 applications have been declared eligible for the over-indebtedness treatment procedure, ie files considered to have excessive debt levels for the financial capacities of the households concerned.

Over-indebtedness, a plague of society

indebtedness

 

The report published by the Banque de France in June 2015 contains a paradoxical element: on the one hand, the number of files filed with the overindebtedness commissions decreased between 2014 and 2015, but on the other hand, the number of files accepted, and therefore receivable for the treatment of over-indebtedness, has been steadily increasing since 2010.

The number of French households in a situation of over-indebtedness has therefore risen steadily in recent years. In January 2011, the report issued by the Banque de France included 688 households in debt distress; they are 839 in January 2015. Among the incoming files, the number of re-deposits, that is to say the files which are deposited a second time, is also increasing.

About 50% of redeposited files are due to a change in the personal life of the household (divorce, death …) or professional (unemployment, disability ….).

Also according to the results published by the Banque de France in the second quarter of 2015, the average amount of over-indebtedness of all the accepted files amounts to € 40,800, all debts included; Excluding real estate debt, the average indebtedness per dossier filed is 26,900 euros. In addition, the June 2015 barometer shows that financial debts are the main cause of over-indebtedness of French households. They account for 78.6% of overall indebtedness, with current account arrears accounting for 11.2% and the remaining categories of debt 10.2%. Financial debts consist of several categories of debt, namely:

    • consumer credit;
    • real estate loans;
    • overdrafts and various overtaking;
    • consumer credit (the main reason for the over-indebtedness of the French population).

Which households are affected?

loan

 

A study, also conducted by the Banque de France for the year 2014, analyzes the different socio-demographic and professional characteristics of over-indebted households. This study clearly highlights the predominance of the segment of the population most affected by over-indebtedness: that of people living alone. Whether single, separated, divorced or widowed, unattached individuals account for 64.6% of the households recognized as over-indebted during 2014.

The survey also reveals that people aged 35 to 54 are the most affected in this segment of the population (about 27%), followed closely by those over 55 (23%). In addition, the Banque de France notes that tenants are generally more over-indebted (77.5%) than homeowners, even though they are increasing (10.8%).

From a socio-professional point of view, the survey shows that people experiencing professional difficulties are the most affected by over-indebtedness: 28.7% are unemployed, 11.9% are unemployed, and 9.7% are unemployed. % of people without professional activity (disability, parental leave …). With regard to persons engaged in professional activity, workers and employees are the most over-indebted sections of employees (respectively 24.3% and 34.4%). Indeed, the same study shows that households with monthly resources less than or equal to 2,000 euros are generally the most over-indebted (76.3%).

Since the level of resources of over-indebted households is relatively low, debt repayment capacity is therefore lower. The monthly resources available for the various payments (rent, rental charges, food expenses, etc.) are often quickly exhausted and are not sufficient to clear the remaining debts resulting from the various credits. The Banque de France observes that half of the over-indebtedness files filed with the commissions are accepted due to the lack of household repayment capacity (53.5%). The difficulties of cash and solvency affect unfortunately a good number of households everywhere in France, the mixed indebtedness (credits and current expenses) only increasing with the time.