The Enforcement Judge of the Paris Judicial Court, in its decision of 11 January 2024 (No. 23/81656), pronounced the annulment of the enforcement measures initiated by SAS Cabot Financial France (formerly Nemo Credit Management), for failure to validly prove its status as assignee of the debt arising from a judgment of 20 September 2005. Cabot was ordered to pay damages for abusive attachment.
Enhanced Judicial Review of the Assignee’s Proof of Standing to Act
Context and Facts of the Cabot Financial France / Mr. [F] Case
This decision concerns a dispute between Mr. [F] and SAS Cabot Financial France, formerly known as Nemo Credit Management.
The origin of this proceeding lies in the enforcement of a judgment rendered in the presence of both parties (jugement contradictoire) by the Bobigny District Court (tribunal d’instance) on 20 September 2005, which ordered Mr. [F] to pay various sums to BNP Paribas.
Relying on this enforceable title, Cabot, presenting itself as assignee of the debt, initiated enforcement measures:
- a payment order for the purposes of seizure and sale (commandement de payer aux fins de saisie-vente) on 16 June 2018;
- then an attachment order (saisie-attribution) on Mr. [F]’s accounts on 3 January 2022.
Mr. [F] brought an action before the Enforcement Judge to seek the annulment of these measures, arguing in particular the absence of proof of Cabot’s standing to act (qualite a agir).
The core of the challenge concerned the establishment of Cabot Financial France’s standing to act as the legal successor of BNP Paribas. It is imperative for a collection company to prove that it is indeed the assignee of the debt subject to enforcement.
Cabot produced a private deed of debt assignment (acte sous seing prive de cession de creance) dated 19 October 2017. By this deed, BNP Paribas assigned to Cabot a debt of 18,026.65 euros, referenced under number 9057467.
Inconsistencies Between the Enforceable Title and the Debt Assignment Deed
However, the Enforcement Judge identified a fundamental discrepancy between the documents produced by Cabot and the initial enforceable title.
- the 2005 judgment referred to a deposit account and a specific loan, neither of whose references matched the reference appearing in the 2017 assignment deed;
- the amount of the judgment (13,148.29 euros) did not match the amount stated in the assignment deed (18,026.65 euros).
The judge emphasized that Cabot had failed to provide a probative explanation of the correlation between the acquired debt and the enforcement of the 2005 judgment. Consequently, the court held that Cabot fails in the burden of proof incumbent upon it to establish that it has the status of assignee of the debt resulting from the judgment.
The Importance of Proving the Assignee Creditor’s Standing to Act
Cabot’s lack of standing to act had direct repercussions on the validity of the enforcement measures undertaken. The Paris Judicial Court pronounced the annulment of the payment order for seizure and sale of 16 June 2018, as well as the annulment of the attachment order of 3 January 2022.
This decision, which annuls a payment order for seizure and sale and an attachment order, is a rigorous application of Article L. 111-2 of the Code of Civil Enforcement Procedures (code des procedures civiles d’execution), which requires the enforcing creditor to prove an enforceable title and, in the case of assignment, its standing to act. The ruling illustrates a tightening of the review exercised by the Enforcement Judge over the traceability of assigned debts, particularly when the title is old.
It is established case law that the assignee must prove its standing to pursue enforcement of the title on behalf of the assignor. In this case, Cabot had produced a debt assignment deed dated 19 October 2017. However, the Enforcement Judge did not confine its review to the formal validity of the deed. It conducted a comparative analysis between the data of the enforceable title (judgment of 20 September 2005) and those of the assignment deed.
The Enforcement Judge concluded that Cabot failed in its burden of proof to demonstrate that the acquired debt specifically corresponded to the one resulting from the enforceable title it claimed to enforce. It follows that the mere mention of a nominal debt in an assignment certificate is insufficient if it is not supported by concordant evidence proving that it is strictly the same as the one established by the initial enforceable title. This ruling marks a welcome strengthening of the standard of proof in favor of the debtor being pursued.
The Creditor Lacking Standing to Act Penalized for Abusive Attachment
The Creditor Penalized with Damages for Abusive Attachment
Article L. 121-2 of the Code of Civil Enforcement Procedures confers upon the judge the power to order the creditor to pay damages in the event of abusive attachment. The attachment order had enabled the seizure of the sum of 1,759.69 euros. The Enforcement Judge recognized that the fault of the attaching party had caused a cash flow deficit for Mr. [F], depriving him of the use of this sum for nearly two years. Although the court took into account Mr. [F]’s procedural inertia (he only requested reinstatement of the case in October 2023 after it was struck off), Cabot’s initial fault was established.
In compensation for the harm caused by this abusive attachment, Cabot Financial France was ordered to pay Mr. [F] the sum of 250 euros in damages.
However, it is essential to note the modulation of the quantum of damages awarded (only 250 euros). The Enforcement Judge explicitly weighed the attaching party’s fault against Mr. [F]’s procedural inertia, as he only requested reinstatement of the case in October 2023, following a striking off in April 2022.
This modulation sends an ambivalent signal: while the creditor’s initial fault (pursuing without standing) is penalized, the debtor cannot claim maximum damages if his own conduct or lack of diligence contributed to the duration of the funds’ immobilization. The Enforcement Judge acts here in equity, tempering Cabot’s liability by the passivity of the debtor.
Rejection of the Claim Based on Prescription of the Enforceable Title
The Enforcement Judge also rejected Mr. [F]’s claim seeking to establish the prescription of the enforceable title, considering that this claim was misdirected against a company that did not have standing to act.
This rejection is legally sound. Since Cabot does not have standing to act in recovery, it cannot legally be considered as the party against which the prescription of the enforceable title should be raised. In other words, the question of the validity of the title (its non-prescription) is distinct from the question of the validity of the person pursuing its enforcement (their standing). Having lost its status as a party to the dispute, Cabot could not be the appropriate defendant for ruling on the prescription of the right, a right that theoretically belongs to the actual creditor (BNP Paribas).
