What is prejudgment attachment?
When a creditor has a claim against a debtor which is not paid, in spite of action taken to recover the debt, the creditor will have to obtain a judgment in legal proceedings. This judgment can be executed by the bailiff, and the debt can be recovered in this way. In order to keep his rights, a creditor can attach a debtor’s assets first. By levying prejudgment attachment against the debtor, he is prevented from selling these assets or encumbering them (e.g. with a mortgage) before the creditor has obtained a judgment that enables him to proceed to execution. Prejudgment attachment can be levied prior to or during debt collection proceedings.
Leave to attach at the court in preliminary relief proceedings
Levying prejudgment attachment requires leave from the court in preliminary relief proceedings. The attachment is applied for by a lawyer by means of a petition (application for attachment). The claim and the amount of the claim must be described in this petition. As a rule, the application is allowed by the court in preliminary relief proceedings, which only decides summarily. The debtor is not informed of this decision, so the attachment will come as a surprise (this is characteristic of prejudgment attachment).
Bailiff levies prejudgment attachment
Next, the bailiff levies the attachment. Prejudgment attachment may inter alia relate to property, money in bank accounts (this is called ‘garnishment’), or movables such as cars or household effects. If a bank account is attached, it is blocked. If a house is attached, a note of the attachment is made in the Land Register. As a result, the house cannot be transferred to a third party. The debtor is therefore no longer able to transfer the attached goods or to dispose of attached bank balances.
Conditions for levying attachment
The leave to attach issued by the court in preliminary relief proceedings is subject to some conditions. For example, the court in preliminary relief proceedings establishes the (maximum) amount that may be attached. Furthermore, the creditor has to bring the main action against the debtor within a certain period after the attachment was levied (usually 14 days), insofar as this has not yet happened. This period is very stringent: the attachment lapses if this period is exceeded.
Prejudgment attachment changes into attachment in execution
When the creditor’s claim is allowed in the proceedings, the prejudgment attachment automatically changes into attachment in execution and the creditor can proceed to execution. This also requires the use of a bailiff.