Monday April 03 2023
Seizure Before Judgment
The seizure before judgment is a protective measure where the seized property is placed under the control of a bailiff who is responsible for it pending the outcome of a final judgment on the rights of the parties in a dispute. The main purpose of the seizure before judgment is to preserve the rights of the creditor during legal proceedings.
Two main categories of seizure before judgment can be identified. The first category allows the seizure of the debtor’s assets before judgment if there is any reason to believe that the recovery of the debt might be jeopardized. The second allows the seizure when the creditor claims to have rights, as owner or otherwise.
Furthermore, in a proceeding for the annulment of a marriage or a civil union, for separation, for divorce, for dissolution of a civil union or for a payment of a compensatory allowance, a spouse may seize before judgment a property belonging to him or a property to which he/she is entitled. The movable property belonging to him can be seized whether it is in the hands of the other spouse or a third person.For the share to which the spouse would be entitled, the court determines who is to be the custodian of the property seized.
A seizure before judgment requires the drafting of various documents by a lawyer. The affidavit, which is a sworn, written declaration or statement, is the most important document stating the creditor’s claim. Therefore, it is important for the creditor to cooperate closely with the drafting by stating facts or providing necessary documents to support his claims. Once the procedure has been completed, it must be stamped at the courthouse, after obtaining permission from a judge when necessary. The documents will then be handed over to a bailiff who will proceed with the seizure, without notice to the debtor. The advantage of a seizure before judgment is that it provides a surprise effect. Indeed, the seizure is prepared without the knowledge of the debtor, who is only informed when the bailiff proceeds with the seizure. Only when the seizure has been completed can the debtor contest it’s validity by means of a motion to annul the seizure.
A seizure before judgment provides a significant effect and can be used as an extremely useful and effective tool in certain disputes. However, it should only be granted when certain legal conditions are strictly respected because it can sometimes have a devastating effect. For example, a creditor who obtains a seizure by swearing to facts that he knows are untrue is liable to be sued for damages for wrongful seizure.
Do not hesitate to contact your lawyer to find out more about seizure before judgment and its conditions of application.
Me Samar Bentaleb
Alepin Gauthier Avocats Inc.
This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.