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Covering credits
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 How to face the unpaid ones ?
The recovery of the debts is of crucial interest as well for the companies within the framework of their marketing activity or financial as for the private individuals: rent of a lease of dwelling, ackowledgement of debt between private individuals, alimony, wages.
The creditors have at their disposal the procedures of the common right, but also of the emergency procedures to oblige their debtor or, if necessary, the guarantee to pay.
But, before even arriving at that, there exist modes of safeguarding of the credits which can prove extremely useful, when the debt becomes exigible.
It is also possible to be addressed to a professional to entrust covering or not to him, friendly third, of your credits.
Safeguarding of the credits
It is first of all about the contract of guarantee, by which the guarantee begins to pay the debt of the principal debtor in the place of this one. This mechanism makes it possible to the creditor, when the debtor does not discharge a debt, to be turned over against the guarantee, which is held to him in the same terms as the principal debtor.
In the same way, when the recovery of the debt is threatened by the fact that the debtor is not deprived of his inheritance and that it can, constantly, to freely lay out it with thirds, the debtor can proceed, with legal authorization or without, when it has an executory title, with the provisional inscription of a safety or the garnishment of a good of the debtor (provisional legal mortgage on a building, seizure of the bank account or garnishment of the pieces of furniture of company etc). (articles 74 to 76 law of July 9, 1991 and decree of July 31, 1992 article 220 to 243).
The creditor who obtained or has an executory title noting a liquid and exigible credit can make proceed to the sale goods which were seized to amount of the amount of its credit.
In addition, when the garnishment relates to a credit, the creditor, provided with an executory title, can ask for the payment of it.
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Recovery of the debts
The installation of measurements of distraint of the common right.
Once the practised temporary measures, the debtor must assign at the bottom, i.e. to seize the Court of competent jurisdiction (civil jurisdictions when it is about a civil credit and Bankruptcy court, when it is about a commercial credit) to make note his credit and obtain the judgment of the debtor to regulate the sum due to him.
The judgement if it is matched provisional execution or if it is final, will make it possible to transform the garnishment into seizure attribution or seized sale:
The seizure attribution (articles 42 to 47 of the law of July 9, 1991 and decree 55 to 79 decree of July 31, 1992). It is a seizure of credits of sums which a third on behalf of the debtor holds, including the banks. The unpaid ones are recovered near the third between the hands of which the seizure will be practised. It is carried out by act of usher addressed by seizing to the seized third and prohibits to him to have the sums claimed within the limit of what the debtor owes. The debtor has a one month deadline as from the seizure to seize the judge of the execution.
Seizure - sale (articles 50 to 55 law of July 9, 1991 and decree July 31, 1992 articles 81à 138). It makes it possible to the creditor to seize the pieces of furniture of the debtor, to make them sell and to be paid on the price.
- Seized of the rights of associated and the transferable securities (articles 178 to 193 of the decree of 1992)
Are also seizable the titles, partnership shares, right of associated or transferable securities. The seizure is carried out is near the third which manages them or holds them, that is to say near the transmitting company. The act of seizure makes inalienable the emoluments of the debtor. This one can obtain the replevin from it by consigning a sufficient sum to satisfy the creditor. This sum is especially assigned to the profit of the distraining creditor.
In the absence of payment or of friendly sale, the compulsory sales can intervene within one month on the presentation of a certificate issued by the secretariat grafts attesting that no dispute was formed or, if necessary, of a judgement rejecting the dispute raised by the debtor.
For the allowed transferable securities with dimensions official or that of the second market, the sale is carried out by the competent intermediary, generally the company of purse.
For the rights of associated or the transferable securities not - dimensioned, the sale is made in the form of adjudication with a schedule of conditions which takes again the legal or statutory restrictions on transferability.
It is also possible to carry out the seizure of the remunerations of labour (article R 145-1 and following of the labor regulation). Any creditor provided with an executory title noting a liquid and exigible credit can make carry out the attachment renumeration which had by an employer with his debtor. Jurisprudence extends this concept to the retirement pensions. The procedure is open in front of the magistrates' court of the place of residence of the debtor.
This procedure is matched conditions as the share of the seizable wages and the quality of employee.
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 Emergency procedures
There exist still fast and exceptional procedures instituted in the emergency cases and for the difficulties of execution.
The action is activated in summary procedure
The action in summary procedure is a simple procedure and rapid which makes it possible to make sure of the recovery of the debt, when that if is not seriously contestable (Article 809 Al 2 NCPC).
The summary procedure can be used in front of all the jurisdictions: Magistrates' court, Bankruptcy court, Court of Arbitration, Court of Bankruptcy, Administrative court. However, this procedure does not make it possible to obtain the conversion of a conservative measure into final safety.
The injunction to pay in front of the Magistrates' court (article 1405 to 1425 of the NCPC and article 60 of the decree of March 17, 1967)
This procedure makes it possible to the creditor to quickly obtain (on average in less than two months) and in a unilateral way an executory title allowing him the recovery of the debt.
It is enough to hold a credit (civil or commercial) whose amount is given (but without limitation), having a contractual cause, the proof of this one being able to be made by all means (purchase order, invoices, delivery order…).
The procedure is flexible: it is engaged by a simple request (according to preliminary forms), addressed to the court of the residence of the debtor either by letter, or by deposit at the clerk's office.
After examination of the request, the court, if it considers the request founded will condemn the debtor to the payment of the credit. The decision will have to be meant by way of usher to the debtor, who will have faculty to file opposition within one month following the act of significance
The amicable settlement of the credits for the account of others
It is also possible to entrust the friendly covering of your credits to a professional, company of covering or lawyer (Lawyer, Huissier), which will give the responsability themselves to recover in your place the sums due.
If you choose to address to you to a company covering of credits, it is important that you make sure that this one is actually covered by a professional insurance and justifies to be titular of an account in a finance company approved and exclusively affected with the cashing of funds for the account of others.
In addition, you must necessarily conclude with the company from covering an agreement in writing, in which will be specified:
- the base of your credit
- the detail of the sums due
- conditions of determination of remuneration to your load
- conditions of covering of the funds boxed for your account.
The person in charge of friendly covering, that is a company of covering, a lawyer or an usher, must address to the debtor a letter of injunction containing obligatorily:
- its name, its address, its company name, the fact that she carries on a friendly activity of covering
- the name and the address of the creditor
- the base and the amount of the credit in the main thing, interests and accessories.
The funds received by the company of covering must be transferred with the creditor within one month as from the effective cashing, except contrary convention.
On the other hand, if you would have addressed to a bailiff, this one must pour you the sums received within a three weeks maximum delay if the payment is carried out in cash, six weeks in the other cases. (Article 25 Decree n°96-1080 of bearing December 12, 1996 fixing of the tariff of the bailiffs in civil and commercial matters, modified by the decree n°2001-212 of March 2001 and the decree of the n°2001-373 of April 27, 2001)
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Covering credits
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