Seizure before judgement is a procedure that allows a creditor to protect their rights and secure certain assets of the defendant before the judge renders their decision. The purpose of this debt collection procedure is to ensure that the debt can be recovered, even if the defendant attempts to conceal or transfer their assets. Seizures before judgement largely follow the same rules as post-judgment seizures, but certain specific provisions of the Code of Civil Procedure apply only to this measure.
Seizures before judgement can be carried out at different times: before the case is filed in court, during the trial, or even at the appeal stage, if the court allows it. In principle, the seized assets are entrusted to a third party who keeps them “under judicial control,” i.e., under the control of the judicial authority to ensure the enforcement of a court decision or the recovery of a debt. However, with the consent of the claimant, the bailiff may leave the property in the hands of the defendant, while ensuring that it is not used or sold.
There are two types of seizures before judgement:
- Seizures before judgement by operation of law
- Seizures before judgement with judicial authorization
Definitions of key terms
To better understand seizures before judgement, it is useful to define certain terms often used in this context:
The defendant: the person against whom legal action is being taken. In a seizure before judgement, this is often the debtor.
The debtor: the person who owes money or has an obligation to someone. In most cases, the defendant and the debtor are the same person.
The garnishee: the person whose property is subject to garnishment. This may be the defendant themselves or a third party who holds the property to be garnished.
The creditor: the person or company to whom a sum of money is owed. It is the creditor who takes the initiative to request garnishment to protect their claim.
The seizing creditor: the creditor who initiates the seizures before judgement procedure. They provide instructions to the bailiff and file the necessary documents for the seizure to be carried out.
The seizure: the act of placing certain assets of the defendant “in the hands of the court.” In other words, these assets are frozen to ensure that the debt can be recovered if the court finds against the defendant.
The bailiff: a court officer responsible for seizing the assets from the defendant or a third party holding them, in accordance with legal formalities.
Seizure before judgment as of right
The plaintiff may act “as of right,” i.e., they may proceed with a seizure before judgment without seeking prior authorization from the court.
They may seize by operation of law:
- Movable property to which they are entitled to lay claim.
- Movable property to which they have a priority right and whose use by the owner could jeopardize the recovery of their claim.
- Movable property that they are legally entitled to seize to protect the exercise of their rights over such property.
In the case of technological devices, such as computers or digital documents, prior authorization from the court is required. The law requires the consent of a judge to protect the information contained in these media, which guarantees the confidentiality and protection of the defendant’s sensitive data. In practice, therefore, these assets cannot be seized in the same way as physical objects or paper documents.
Seizures before judgement with judicial authorization
Unlike seizure before judgment by operation of law, seizure before judgment with judicial authorization requires court approval. Thus, if you are not in a situation where seizure by operation of law is possible, you must obtain court authorization. This measure is only possible if there is concern that the money or property may not be recoverable at a later date. It always aims to secure essential assets so that they remain available to cover the debt when the final judgment is rendered.
The terms and conditions of seizure before judgement
The main steps in a pre-judgment seizure are as follows:
- The creditor’s request
The creditor prepares a notice of enforcement containing their instructions, accompanied by a sworn statement. This declaration certifies the existence of the debt, specifies the amount owed, and sets out the facts justifying the seizure. If certain information comes from external sources, these must be clearly mentioned.
- Court authorization (if necessary)
In certain situations, court approval is mandatory and must be mentioned in the creditor’s declaration.
- Instructions to the bailiff
The creditor then sends the bailiff detailed instructions on the property to be seized and how the seizure is to be carried out.
- The role of the bailiff
The bailiff carries out the seizure and gives the defendant two essential documents:
- The enforcement notice, which officially informs the defendant of the seizure.
- The creditor’s statement, which explains the reasons for the seizure.
After the seizure: the defendant’s rights
When the pre-judgment seizure takes place before the legal claim, the creditor has five days after the notice of execution to file their claim with the clerk and inform the defendant.
Upon receipt of the notice of execution, the defendant has five days to request the cancellation of the seizure if the creditor’s statement contains insufficient or incorrect information. If the court accepts the challenge, the seizure is canceled. Otherwise, it is confirmed, and the court may adjust its scope.
To prevent his property from being seized, the defendant may provide security to the bailiff. This may take the form of:
- A cash deposit.
- A guarantee provided by a bank in Quebec.
- Insurance that promises to pay if the defendant fails to meet his obligations.
The guarantee must be sufficient, i.e., commensurate with the amount claimed by the creditor or the value of the property that may be seized. If the bailiff refuses the guarantee, the defendant may ask the court to decide.
In conclusion
Pre-judgment seizure is an essential tool for protecting the debt and ensuring that it does not disappear before the final judgment. It secures certain assets in order to guarantee repayment of the debt. This procedure is based on specific steps and involves several parties: the seizing creditor, the bailiff, the court, the defendant, etc. However, the defendant retains important rights: they can contest the seizure, request its cancellation, or provide a guarantee to protect their assets. By understanding the key definitions, types of seizures, the role of each party, and the steps to follow, it is possible to understand how this procedure works and know how to act legally.
If you need help with a creditor or debtor, contact us now.
NOTE: This article does not constitute legal advice or legal opinion. It is provided for informational purposes only to help readers better understand certain aspects of pre-judgment seizures in Quebec. As each situation is unique, we recommend consulting a lawyer specializing in debt collection or a legal professional for a personalized assessment of your case.