When a debtor fails to pay invoices, or commits an act on the bases of which damages can be claimed, creditors in the Netherlands are able to secure their claims by seizing the assets of the debtor. This system of prejudgement arrest is quite unique, because it gives the creditor the chance to seize goods or other assets (such as a positive balance on a bank account), even before a substantive judge has given a verdict on the claim itself. The reason is that debtors in some cases as they feel the threat of a pending claim, disperse of their assets, so they are not able to pay their creditors (the infamous “habenichts”- defense).
Requesting the attachment
The proceedings are as follows. A request has to be filed by a lawyer explaining the outline of the claim, the summation letter, and some other formalities. Also, there must be a specification of the assets that are to be seized. Attachments can be made on goods, on debt-claims, under third parties (such as banks), etc. Specific procedural rules apply to many specific attachments, such as that of assets in movable goods or trade stock, shares, real estate, registered goods such as ships and aircrafts.There are strict and detailed guidelines for the courts on how to rule on such requests, but these guidelines are public, so any lawyer can access them. The debtor is in most cases not heard in this stage in order to avoid that the debtor moves his assets away. If the court isof the opinion that the claim is a at first sight valid and existing, leave is granted to effect all or some of the attachments requested.
Main proceedings
After the request is granted, the attachment is done by a bailiff. There are a lot of formalities that need to be executed with precision, otherwise the attachment is deemed void. One of the main aspects is that the main proceedings need to be started within a couple of weeks (minimum 8 days, but mostly within 2 weeks). During the main proceedings, the attached assets remain frozen; the debtor is not allowed sell them, and the creditor has to respect the attachment. Ignoring the attachment is forbidden (and is a criminal offence).
Relieving the attachment
What can be done? Fishing expeditions for assets are of course not allowed. If the attachment is disproportionate, or alternative security can be provided, there is no ground to leave the assets attached. For a claim of € 20.000, an attachment of all the stock and inventory that could potentially kill the business of the debtor – if allowed in the first place –will probably not hold.
In case the creditor doesn’t voluntarily lift the attachment, a summary proceedings needs to be started, with a request for injunctive relief. This can only be done via a lawyer (court proceedings). If the court agrees with the debtor, the attachment is lifted.
Wrongful attachments
Because the implications for the debtor of such an attachment can be quite disastrous, the creditor is liable for damages and costs, in case of an attachment for a non existing claim. This means that the fact that the preliminary relief court gave permission for the attachment in the first place, is not a valid defense, because that is (in most of the times) a default proceedings.
Though this kind of prejudgement attachments is a powerful instrument in the protection of creditor’s rights, it must be used wisely.
Van Ewijk advocaten mediators has gained a lot of experience in this particular area of litigation, in placing the assessments as well as lifting them. If there are any questions about prejudgement attachments, please feel free to contact us.
Publisher: Van Ewijk advocaten mediators