Prejudgement attachment

It is relatively easy to execute an attachment against a debtor in the Netherlands. In the event of an unpaid claim you can consider attaching bank accounts, inventory, stock, or even impose an attachment against the customers of your debtor. Here, you will find information about the proceedings, the possible steps, and what steps require the assistance of an attorney.

Unpaid bill

If your debtor does not pay and you want to do something about it, you can submit your claim to the judge. It is possible to impose a prejudgment attachment prior to such legal proceedings. This is when you come into contact with attachment law and where you need an attorney to submit a claim. The executory attachment commences after the judicial proceedings and the debtor still refuses to pay.

Prejudgment attachment

With a prejudgment attachment assets are “frozen” until the judge has rendered his decision with respect to collecting your debt. If the prejudgment attachment is successful, you obtain certainty that your debtor still offers recovery options when your claim is awarded. After all, the bank balances and immovable and movable property that are attached remain available to you. This ensures that you can actually collect your claim, after you win your case. This attachment can be imposed on all the possessions of the debtor.
An additional benefit of prejudgment attachment is that the debtor immediately loses the right to dispose of the attached good. When bank accounts are attached, the debtor no longer has his money at his disposal, and when movable property is attached the debtor no longer has this property at his disposal. In some cases this will make the debtor pay for this reason alone. The attachment more or less forces the debtor to pay his debt in full, resulting in a settlement of the dispute.

The proceedings

In order to impose prejudgment attachment, an attachment application has to be submitted with the court within the district where one or more properties the creditor wants to attach are located, or where one of the people against whom the attachment is imposed lives.
Submitting such an application can only be done by an attorney. The district court will decide whether or not to grant the attachment application based on the content of the application. It is necessary to engage a bailiff for the attachment itself. The bailiff will have to perform a few formal acts, after which he informs the debtor of the attachment in writing. This written notice needs to be furnished with the leave granted by the judge, the application, and the writ of attachment.

What can be attached?

In principle, a prejudgment attachment can be imposed on all assets of the debtor. For instance on a house, car, or bank account, but shares can be attached as well. The total assets of a debtor may be attached. The claims a debtor has on others are also considered to be assets of the debtor. These others are also called third parties.

Attachment under third parties

Attachment under third parties is also known as attachment by garnishment. This includes all attachments by a bailiff against a third party. With this, an attachment is imposed against someone who is really not involved in the dispute between the creditor and the debtor. This third party will nonetheless have to comply with the instructions of the bailiff.
With a bank account attachment, the claims the debtor has on the bank are attached. This could be the case if the debtor has a bank account with a balance with that bank. Attaching someone’s bank account or other bank balances is therefore a form of attachment by garnishment. After all, the bank is not a party in the dispute between creditor and debtor.
Garnishing someone’s wages is also a form of attachment by garnishment. This is called wage garnishment. After all, based on his employment agreement an employed debtor has a periodic claim for wages on his employer. Because this claim belongs to the assets of the debtor, the claim can be attached as well. The attachment is therefore imposed against the employer. Because of this, the employer can no longer pay the wages to his employee just like that (taken into consideration the protected earnings level).

Lift the attachment

The leave to attach issued by the court in preliminary relief proceedings cannot be appealed. The debtor does have other options to lift the attachment. The debtor can initiate preliminary relief proceedings in which he requests to lift the attachment. An attorney has to initiate such proceedings.

Claim is prima facie unfounded

In order for the attachment to be lifted, the claim needs to be prima facie unfounded. The party who claims in preliminary relief proceedings that he attachment needs to be lifted needs to concisely and convincingly argue that the claim the judgment creditor allegedly has does not (or no longer) exist or, for instance, has expired.
Security
Another method that is often used is the provision of security. If security is provided for the claim of the creditor, for instance by providing a bank guarantee, the judge will determine that the attachment needs to be lifted. In that case the provided security takes the place of the prejudgment attachment.

The unsuccessful creditor

When a judge eventually rules against the judgment creditor (creditor) the prejudgment attachment is lifted. The alleged debtor regains the power to dispose of the attached property. In some cases, the damages suffered by the alleged debtor as a result of the wrong attachment can be recovered from the judgment creditor.

Executory attachment

If legal proceedings were already conducted and the debtor was ordered to pay, but does not comply with this voluntarily, the debtor can impose an executory attachment. This is called the enforcement of a judgment, and execution law applies.
Just like with the prejudgment attachment, the bailiff is the only person who can impose the attachment. And all assets of the debtor may principally be attached. If a prejudgment attachment was imposed prior to the proceedings, this prejudgment attachment will turn into an executory attachment by operation of law.
In case of non-payment, the bailiff will enforce the executory attachment. How this takes place will depend on what is attached. In the event of an attachment of a bank account, the bailiff will instruct the bank to pay the money that falls under the attachment to him. If the house of the debtor is attached, the bailiff can, in consultation with the notary, sell the house by public auction.
When shares are attached, the judgment creditor needs to ask the court to set a term and the conditions for the sale, after which a public or private sale takes place.
All measures to enforce judgment can take place without the consent of the debtor.

International attachment

Nowadays it is easier to attach foreign bank accounts within the EU. Furthermore, Fruytier Lawyers in Business is part of Lawyers Associated Worldwide, an international network of law offices. With the help of our LAW partners we can quickly and efficiently collect your debt, if needed, with the use of international attachment.
The attorneys at Fruytier Lawyers in Business specialize in attachment and execution law. Our knowledge and experience allow us to advise you, as your partner, regarding the needed measures in the event of non-payment or when you are faced with an attachment. Would you like to receive more information? Please contact us. You can quickly and easily do this by completing the form below. Or call us directly on 020 5 210 130 « Back to corporate law