The 10 most frequently asked questions about attachment
Do you have a (large) claim on your debtor and are you afraid that you will miss the boat? If so, you may consider levying an attachment. But how does this work? SPEE advocaten & mediation will answer 10 FAQs concerning attachments.
1. When can I levy a prejudgment attachment?
You can have an attachment levied if you have a monetary claim against your counterparty and you suspect or fear that the money cannot be recovered, for example in case there are several other creditors.
2. What is the difference between prejudgment attachment and executory attachment?
A prejudgment attachment is levied in the phase when you do not yet have a court ruling in your favour. This means that at that stage you cannot actually recover the monies/goods that are attached. Once the court has awarded your claim, the prejudgment attachment becomes executory, in other words, enforceable. The monies/goods seized can then be claimed; in the case of goods, they will be sold and, as a creditor, you can recover the proceeds. However, if the court rejects your claims, the prejudgment attachment will lapse. Under circumstances, you may be liable for the damage caused by the attachment.
3. What are the most common forms of attachment?
In practice, the most common forms of attachment are:
- - Attachment under the debtor himself, for example, the attachment of (valuable) movable property and immovable property;
- - Attachment by third parties: the attachment of goods owed to your debtor by a third party. This also includes wage attachments from your debtor's employer and attachments to the debtor's bank accounts;
- - Self-attachment: if you claim that you and your debtor are each other's debtors and you wish to have what you owe to your debtor attached for your claim against your debtor.
This contribution is limited to the main points; there are other types of prejudgment attachment. Your lawyer can advise you what is the most sensible option in your case.
4. What rules apply to attachment?
Besides the Code of Civil Procedure, the Attachment Syllabus is the most important document on this subject. Your lawyer will therefore always consult this set of guidelines (which is amended periodically). The conditions set by the court for granting permission to levy attachments depend on the type of attachment for which the leave to attach is requested. The Attachment Syllabus provides a detailed overview on these topics as well.
5. How can can I levy a prejudgment attachment?
First of all, you have to engage a lawyer who is experienced in debt collection. The lawyer will prepare an application to attach, that will be submitted to the court. This document will state why you wish to have an attachment order made, including legal grounds, and what exactly you wish to have an attachment order made for.
It is very important that the application to attach is correct and complete and that all evidence (e.g. copies of contracts, invoices and reminders) are submitted by your lawyer. If your debtor has already put forward a defence against your claim, you will also need to discuss this and refute it. The application to levy an attachment is therefore a document that should not be underestimated!
Within a few days (or even sooner if necessary) you will receive a judgement from the court. In most cases there is no need for a court hearing. This is different if it concerns attachment of wages (attachment of salary) or an attachment whereby possessions are taken into custody; in that case the debtor is usually heard beforehand.
If the court does authorise the levying of an attachment (in a 'leave to attach'), your lawyer will call in the bailiff. In consultation with you, we will then consider the most suitable moment for levying an attachment. Sometimes this is as soon as possible, in other cases it is better to choose a strategic moment.
6. What does it cost to have an attachment levied?
In addition to the costs of your lawyer, you will have to pay court fees. Also, the costs of the bailiff will be passed on to you. Hence, levying an attachment is not free of charge, but it can save you a lot of money. After all, the main proceedings (see question 7) can take quite some time; if you do not arrange for an attachment to be made on time, you may end up empty-handed, even if the ultimate judgement is in your favour.
7. What should I do as a creditor after I have had an attachment levied?
You cannot just seize without any restrictions: you must actually institute a 'claim in the main action', for example, start civil proceedings with the court, after the attachment has been levied. In those proceedings you will then ask the court for a substantive opinion on the dispute with your debtor. If you fail to do so, the prejudgment attachment will lapse. Generally speaking, the term for lodging a claim in the main action is 14 days.
8. Help, my debtor is going bankrupt, what does this mean?
If you have a prejudgment attachment levied, then unfortunately you are not protected against the bankruptcy of your debtor. When the bankruptcy is declared, all attachments are cancelled.
9. What does the ‘protected earnings level’ mean?
If you have your debtor's income attached, he or she must have enough money left over to support him or herself. This is why the protected earnings level was created. As the creditor, you can still recover the portion of the debtor's income that exceeds the protected earnings level. More information can be found here.
10. Can the debtor lift the attachment?
It is not easy for your debtor to get out of the attachment. He or she can claim in summary proceedings that the attachment be lifted, for example if it can be shown that the creditor's claim is not sound, or if sufficient security has already been provided. Alternatively, the debtor may ask for the attachment to be lifted in the main proceedings.
Do you also have questions about attachment law? Our team knows what to do!