11 May 2021 Enforce attachment on shares
Are you a creditor and looking for ways to collect your claim? It is worthwhile investigating whether an attachment of shares might be possible. It is, however, important to comply with all the formalities that are associated with the enforcement of an attachment of shares.
As a creditor, you can have shares in a private limited company seized, for example, just as you can have wages and movable or immovable property seized. If you subsequently obtain an enforceable title, you can enforce the attachment.
In the event of attachment of shares, however, it is necessary that you request leave from the court in separate proceedings; in other words, you request permission from the court to sell the shares. A request to sell shares seized can in principle be granted, as long as there is an enforceable title, i.e. you have obtained a judgement in your favour, or there is a notarial deed.
The latter was the subject of recent litigation: the applicant (creditor) had based its request to sell the seized shares on a deed concluded with X and Y. Unfortunately for the creditor, this did not provide a valid title for the attachment in this case. The court could not deduce from the deed that the applicant had a claim (due and payable) against X and Y, or what the size of the claim was. After all, it only appeared from the deed that X would provide security for certain claims and that Y would personally stand surety for them. Although a guarantee can be a valid title, a guarantor is only obliged to perform if the principal debtor X fails to fulfil his obligation. Unfortunately for the applicant, he had not substantiated this in his writ of attachment.
This led the court to reject the request for permission to sell the shares. The attachments that had been made on the shares were also declared null and void, because the applicant had forgotten to have a copy of the title (i.e. the notarial deed) served on X and Y. You can read it here .
SPEE advocaten & mediation will be pleased to help you if you have any questions about the levying of a seizure of shares and the enforcement of such a seizure. You can also contact us if you have any questions about seizure of movable or immovable property and claims.