When you sign a credit agreement, it is often that the latter is accompanied by an act of assignment of debt. This guarantee, often called “transfer of remuneration”, offers an additional guarantee to the lender in the event of irregularities in the repayment of your credit. Our lawyer reviews this widely used legal mechanism in credit matters.
The assignment of debt is an agreement by which the worker (debtor) transfers to the credit organization (creditor), the property of his debt (remuneration) which he holds towards his employer (assigned debtor). By signing such an act, the consumer therefore authorizes the credit institution to collect directly the garnishable part of the salary paid by the employer, without needing a prior judgment.
The employer will then only be able to pay the remuneration to the credit institution. If the employer does not take into account the transfer of remuneration and he continues to pay directly to the worker without making the compulsory deductions, he will be required to pay the banker a second time. This is an application of the adage “who pays badly pays twice”.
The law provides that the assignment of a receivable by authentic instrument cannot be set up against the assigned debtor until it has been notified to or recognized by the assigned debtor.
It is therefore sufficient for the credit institution to notify the debtor assigned by simple mail. The important thing is that the credit institution can reserve proof that it has brought the assignment to the knowledge of the assigned debtor.
This is why, the registered mail is more often used in practice (see the exploit of usher in certain cases).
In the context of an assignment of debt under private seal, the law requires the credit institution 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 institution must also send a copy of the assignment to the assigned debtor.
It is not uncommon for the same receivable to have been assigned several times to different credit organizations. In such cases, the priority rule prevails. It is therefore the first credit organization to notify the assignment which prevails.
In the context of an assignment under private signature, the assignor has a period of 10 days to form opposition from the date of the sending of the notification by the assignee.
The receipt of the notice of opposition has the effect that the ceded debtor can no longer make any deduction from the remuneration for the execution of the assignment.
In the event of opposition, the transferee summons the transferor by registered letter addressed by a bailiff, before the justice of the peace of the canton of the domicile of the transferor for the purpose of hearing the transfer validated.
The justice of the peace rules as a last resort 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 oppose 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 an assignment by authentic instrument, the assignor does not have the possibility of opposing. He may limit himself to taking legal action to request terms and time limits or to contest the authentic instrument.
In addition, for the implementation of the assignment of remuneration to be enforceable against third parties, the assignee must deposit a notice of assignment in the central file of notices.
Pay your monthly payments with seriousness and rigor to avoid such inconveniences. It is never pleasant to see your salary decrease every month. Warning, borrowing money also costs money.