Conservative procedures: prevention rather than cure
It cannot be repeated often enough that the most effective method is to act as quickly as possible. Indeed, if the debtor company is in great economic difficulty, it will make choices among its creditors and will pay in priority those it really needs to continue its activity. It will give priority to those who have a reputation for quickly taking legal action (particularly in the case of preferred creditors) or those who demonstrate a high level of reactivity.
Sometimes, the classic collection procedures (injunction to pay, summons to pay) are no longer sufficient in the face of an imminent danger (fraud or state of cessation of payments that could lead to collective proceedings for example).
Therefore, getting out of the traditional litigation procedures and resorting to precautionary measures can be a formidable weapon to protect one's claim or the object of one's claim. But what is a protective measure? How to set it up? What are the advantages and in which cases can it be used?
What are precautionary procedures?
What is the sequence of events?
A conservatory measure is obtained upon request before an execution judge or before the President of the Commercial Court, who issues an order. This order does not have the authority of a judgment (it is not final) and must therefore be validated by an enforcement order.
However, it will - and this is the main point - make a claim or the object of a claim (equipment, inventory) safe by making the assets (or claims) unavailable. In other words, it will prevent the debtor from selling them or making them disappear.
As this is an order, there is no adversarial debate, nor is there a prior order, so that the effect of surprise is fully effective in countering the bad faith of a debtor who would like to organize his insolvency. The enforcement judge will focus on the peril in the house according to the established term; it will thus be necessary to justify circumstances likely to threaten the recovery.
A measure with many advantages
At this stage, the claim may appear to be merely founded. The enforcement judge does not have to verify whether the claim is certain, liquid and due since a second procedure will be initiated within a month to validate the provisional nature of this order. This brings a real interest to this procedure, but it is not the only one.
Indeed, there is no obligation for the claim to have any link with the security measure envisaged, i.e. with the property to be seized. You can therefore block a stock of goods as security for a purely financial claim.
Within the framework of the most common collection operations, two types of seizure of property will be considered. Of course, these procedures are not exhaustive, and aim to focus on the most frequently used and easily achievable operations.
The seizure-attribution procedure
First of all, it should be remembered that if you are a creditor, your debtor is necessarily also a creditor to one of its partners or customers. This notion is important because funds that would be due to your debtor are likely to be blocked.
As an example, and because I have used it many times, I am happy to cite the procedure of seizure of assets as a precautionary measure against a pharmacy that has not paid one of its suppliers. The pharmacist, in the event of threats of collection, will have every opportunity to seize the funds intended to be paid to the debtor pharmacy in the hands of the CPAM.
Schematically, the CPAM organization will then have to block its outpayments and on the creditor's side, it will be necessary to validate this protective order by an enforceable title in order to then convert this protective seizure into an attachment.
The procedure of seizure for the purpose of apprehension
The other useful and commonly used measure is the conservatory seizure for the purpose of apprehending equipment or a stock of goods. In this procedure, you do not block funds, but rather put movable property as security in order to force the debtor to pay.
I have, for example, blocked a stock of goods at a port and called in a security company to guard the stock day and night while awaiting the outcome of the proceedings on the merits launched in parallel.
Be careful, seizing a stock or funds does not mean that you immediately become the owner. The seizure is temporary, and simply prevents your debtor from transferring them or making them disappear while you obtain a final title.
What does this mean?
As the queen of procedures in the event of threats to the collection of your debts, a protective order can therefore be obtained very quickly (sometimes in a few hours), does not require adversarial debates at this stage, and makes it possible to use the surprise effect to prevent your debtor from sheltering certain goods or funds. Who said that collection was complicated?
