When you take out a credit contract, it is often accompanied by a deed of assignment of debt. This guarantee, often called “transfer of remuneration”, offers additional guarantee to the lender in the event of irregularities in the repayment of your loan. Our lawyer takes stock of this very common legal mechanism in terms of credit.
Concept on the assignment of debt
The assignment of debt is an agreement by which the worker (debtor) transfers to the credit organization (creditor) the ownership of his debt (remuneration) which he holds towards his employer (assigned debtor).
By signing such an act, the consumer therefore authorizes the credit organization to directly collect the seizable part of the salary paid by the employer, without the need for a prior judgment.
The employer will then only be able to pay the remuneration to the credit organization.
If the employer does not take the transfer of remuneration into account and continues to pay directly to the worker without making the obligatory deductions, he will be required to pay a second time to the banker.
This is an application of the adage “he who pays poorly pays twice”.
Notification
The law provides that the assignment of debt by authentic deed is only enforceable against the assigned debtor from the moment it has been notified to the assigned debtor or recognized by the latter.
It is therefore sufficient for the credit organization to notify the assigned debtor by regular mail. The important thing is that the credit organization can provide proof that it has brought the assignment to the attention of the assigned debtor.
This is why registered mail is more often used in practice (see the bailiff’s exploit in certain cases).
In the context of an assignment of debt under private signature, the law requires the credit organization to notify the assignor of its intention to execute the assignment of remuneration and to send to the assigned debtor a copy of the notification made to the assignor .
At the end of the opposition period, the credit organization must also send a copy of the transfer document to the assigned debtor.
It is not uncommon for the same debt to have been assigned several times to different credit organizations. In such a case, it is the rule of anticipation which takes precedence. It is therefore the first credit organization which notifies the transfer which wins.
Opposition
In the context of a transfer under private signature, the transferor has a period of 10 days to file an opposition from the date of sending of the notification by the transferee.
The receipt of the notification of the opposition has the effect that the assigned debtor can no longer make any deduction from the remuneration with a view to the execution of the assignment.
In the event of opposition, the assignee summons the assignor by registered letter sent by a bailiff, before the justice of the peace of the canton of the assignor’s domicile for the purpose of validating the assignment.
The justice of the peace makes the final decision regardless of the amount of the transfer. In the event of validation by the justice of the peace, the assignment may be executed by the assigned debtor upon simple notification made to him by the clerk within five days of the judgment.
Conversely, if the worker does not object to the assignment of remuneration, the assignment will take effect from the date of notification of the certified copy of the assignment to the assigned debtor.
In the context of a transfer by authentic deed, the transferor does not have the possibility of filing an opposition. He may limit himself to taking legal action to request terms and deadlines or contest the authentic instrument.
Furthermore, for the implementation of the transfer of remuneration to be enforceable against third parties, the transferee must file a notice of transfer in the central notice file.
Recommendation
Pay your monthly payments seriously and rigorously to avoid such inconveniences. It is never pleasant to see your salary decrease each month. Warning, borrowing money also costs money.
