Attachment and execution law
“The operation was a success, but the patient died” is for legal experts a well-known expression after years of litigation with a successful outcome, but the opposing party has made their possessions untraceable for the creditor during the long legal proceedings. For a creditor, this is a highly undesirable situation. Dutch attachment law can offer a solution.
Prior to, but also during court proceedings, a creditor can seize the debtor’s possessions. Think of attachment of the balance of bank accounts,on movable and immovable property, on wages and claims the debtor has on third parties. This is called prejudgment attachment, which means that the attached possessions are ‘frozen’ until the Court has given judgment. This prevents the absence of assets of the debtor at the end of the procedure, which the creditor could otherwise not recover. It offers a creditor a relatively simple solution for securing their rights.
Sometimes, however, an attachment is too lightly made by the creditor, which under circumstances can be qualified as unlawful. As debtor, you are not powerless in such a situation. There are often possibilities to lift the attachment. This can be claimed in a summary proceedings, but also by providing alternative guarantee (such as bank guarantee). We can provide expert advice.
The moment a creditor is allowed their claim in a Court judgment, the creditor can take enforcement measures to force the debtor to comply with the judgment. The attachment is an important enforcement measure, and is called “attachment in execution” after a judgment. In principle, the creditor is free to fully recover the costs from the debtor’s possessions by attachment and publicly selling the assets of the debtor.
This does not automatically render the debtor powerless, however. Sometimes, the creditor abuses their right in the execution of a judgment. A common example is when a creditor tries to publicly sell a property of the debtor in settlement of his claim, but it is doubtful whether any proceeds of the sale are to be expected for the creditor. Under circumstances, a debtor can stand up for their interests with an execution summary proceedings and petition a suspension of cessation of the enforcement measures.
As a litigation office, TEAM Advocaten has extensive experience with attachment and execution law. We can litigate effectively for both creditors and debtors in this area of law.