Q&A: How to collect a claim in the Netherlands

What does a debt collection process in the Netherlands look like?

The debt collection process can be divided into three phases.

1: Collection out of court

The first phase is called the amicable or extrajudicial phase. This phase can consist of:

–  Sending a written summation. By sending a letter of summons , the debtor is in default. Default of the debtor is a prerequisite to start legal proceedings.

A summation letter states:

• What claim is involved;
• To whom the debtor owes the amount;
• How much of the claim has already been paid;
• What amount of statutory interest and extrajudicial (collection) costs are charged;
• And within which reasonable period the outstanding amount must still be paid.

It is possible to include in the contract (with a professional counterparty) that if the invoice is not paid on time, the debtor is immediately in default. Strictly speaking, sending a summons letter is then not necessary.

–  Making a payment arrangement . In addition to sending a summons letter, it is wise to try to make a payment arrangement. The advantage is that by accepting a payment scheme, the amount of the claim is fixed. If the payment arrangement is subsequently not complied with, it is in any case established that the claim is not disputed and the size of the claim is established.

–  Threatening with a bankruptcy or subpoena.

As an additional means of pressure, threats to file for bankruptcy or sending a subpoena can be mentioned in the summation letter or during the negotiations for a payment arrangement.

2: Judicial collection

There are three legal procedures that can be initiated .

–  Bankruptcy procedure.

At the time the claim is undisputed and due, it is possible to file a bankruptcy petition. The procedure is as follows:

• The applicant submits the request to the court;
• The court calls on the debtor to attend the hearing at which the application for a declaration of bankruptcy is heard. To ensure that the summons has been served correctly, the petition needs to be served by a bailiff;
• In principle, a hearing will take place within three weeks;
• The applicant must demonstrate at the hearing that his claim is due and undisputed;
• The applicant must prove at the hearing that the debtor is in a state fo default. In practice, this means that the applicant can demonstrate that the debtor leaves at least one other party unpaid. The claim of this third party does not have to be due and payable;
• In principle, the judge will pronounce the same day.

• The applicant should take into account that the payment ratee to creditors in bankruptcies in the Netherlands is very low. In the vast majority of cases, no payment is made to the unsecured ( trade ) creditors;
• The advantage of this quick procedure is that maximum pressure is exerted on the debtor and that you will know within a couple of weeks whether the debtor will proceed to payment.

For more information about bankruptcy in the Netherlands read: Banktrupcy in the Netherlands  or Q&A about banktrupcy

–  Civil Procedure

At the time the debtor is in default, it is possible to start a civil procedure.

• This procedure therefore starts with serving the summons. The summons includes:
  • Notice of the debtor (this notice must meet certain legal requirements) to appear in court;
  • What is required (payment of the claim);
  • The substantiation of this requirement;
  • The evidence you have;
  • Why the debtor is obliged to pay;
  • The possible defence of the debtor and its rebuttal (of course only if the defence is known to you);
  • Which claim for compensation of interest, extrajudicial costs and legal costs is claimed.
• The appearance must to the debtor by means of a record of service to be mean d by a bailiff.
• The debtor can then submit a defence/answer to a petition and indicate to the court why he considers that he is not obliged to pay the claim. This can be done in advance in writing (statement of defence) or orally at the hearing.
• An oral hearing of the case will then take place before the court. During that hearing, the judge can ask questions about statements that are not yet clear or he can examine whether the parties can still reach a settlement. The judge will then make a decision, laid down in a verdict.
• The verdict will be sent to parties.

–  European Payment Order Procedure.

Since 2008, it has been possible within the European Union to have an undisputed monetary claim on a foreign debtor established by a judge in the form of a European Payment Order. The procedure is as follows:

• The standard form must be submitted to the competent court. Which court is competent is included in art. 6, paragraph 1 EBB Regulation;
• The judge decides without summoning the debtor;
• If the European Payment Order is issued, it will be served on the debtor;
• The European Payment Order states that the debtor must make payment within 30 days or can file a defence;
• If he wishes to defend himself, this European Payment Order procedure will shift to a “normal” civil procedure;
• If there is no payment, but it is not indicated in time that a defence will be presented , the European Payment Order will be declared enforceable.
• This declaration of enforceability should be sent to the debtor together with the European order for payment. Together they are the necessary enforceable title to proceed to execution.
• Therefore, the procedure is not appropriate when it concerns a disputed claim.

3: Execute

As soon as the court gives its verdict, there is an enforceable title, and the third phase begins. The bailiff must give the debtor the opportunity to pay the amount within a few days by means of serving of the judgment. Only after this term of command has expired can the bailiff proceed to execution and take further steps. Incidentally, it is also possible for the judge to give explicit permission to proceed immediately to execution.

Any prejudgment imposed attachment is converted into an enforcement order and, if necessary, additional executory attachment can be made on the assets of the debtor . The confiscated property can be executed and the claim can be paid with the proceeds.

The debtor can stop the execution if he can demonstrate that there is an abuse of the power to execute. Examples of abuse are:

– That there is a legal or factual error in the judgment;

– That the creditor was guilty of fraud during the legal proceedings;

– That an appeal has been lodged and that the interests of the debtor that an execution has not yet taken place must outweigh the interest of the creditor in order to proceed to execution.

2: Are there options to “freeze” or secure debtor’s redress objects ?

It is always wise to determine whether the debtor offers a remedy. In case the debtor does not offer any means of redress at all, conducting legal proceedings may not be appropriate. In case the debtor does offer redress, there are several options to secure these redress objects.

There are several options for strengthening your position as a creditor with the cooperation of the debtor. Think of surety, mortgage, right of pledge and, for example, retention of title.

However, even without the cooperation of a debtor, it is possible to ensure that the recovery objects are frozen before or after a procedure.

Conservatory/precautionary attachment

In the Netherlands it is possible, prior to the civil procedure, to make a protective attachment. The preliminary relief judge (judge of attachments) must grant leave to be allowed to impose such attachment. A request can only be made by a lawyer on behalf of the creditor. In the Netherlands it is fairly easy to obtain such leave. Even in situations where the debtor has not been heard by the judge.

As soon as the judge has granted leave, the bailiff can serve the so-called attachment notice to the debtor. Subsequently, the creditor must initiate a civil procedure within the period set by the court (often eight days). If the creditor fails to do so, the attachment will lapse.

The debtor’s property may be seized. Think of movable / real estate, shares, a bank account of the debtor. When the income of a natural person is seized, the legislator has determined that part of the income is not covered by the attachment. Furthermore, the Dutch judge does not quickly grant leave to impose a conservative attachment on a company’s stock.

By the way, precautionary attachment is not without risk. In the event that the creditor loses the civil procedure, he is liable for the damage suffered by the debtor as a result of the attachment.

Execution order

As soon as a creditor has obtained an enforceable title, the precautionary attachment will automatically become an enforceable attachment.

It is of course also possible to make an attachment after a judgment has been given.

For more information about attachments in the Netherlands read /knowledge/insolvency-proceedings-in-the-netherlands/

3: Do you need to be assisted by an attorney at law?

Extrajudicial phase

During this phase it is not necessary to be assisted by an attorney at law. In practice, however, this is often customary. This prevents, for example, that the summons letter does not meet the legal requirements or that the agreements regarding a possible payment arrangement have not been properly laid down.

Judicial phase

• Bankruptcy procedure

A bankruptcy petition must be filed by an attorney at law.

• Civil procedure
  • Claims up to an amount of € 25.000 are handled by the district court. This department is not obliged to litigate through an attorney at law.
  • In case of claims above an amount of € 25.000, both parties are required to litigate through an attorney at law.
• European Payment Order Procedure

For the European order for payment procedure, representation by an attorney at law is not required and the parties do not have to appear in court. For a debt collection procedure within the Netherlands, it depends on the nature of the procedure and the amount of the claim or representation by an attorney at law is required.

Execution phase

During this phase, parties are assisted by a bailiff, often in combination with an attorney at law.

4. What are the costs of the procedure and are they eligible for reimbursement ?

Extrajudicial phase

During the extrajudicial phase, you should take the following costs / fees into account:

• If you take the extrajudicial phase entirely at your own expense, i.e. if you do not use the services of an attorney at law or bailiff, you basically have no costs other than your own efforts.
• In the Netherlands, for claims arising after 2012, the creditor is entitled to extrajudicial collection fee. If the parties have not agreed on this, the scale below applies.
• The creditor must, however, claim compensation for this amount. Should it come to legal proceedings, an explicit claim must be made for a conviction of extrajudicial collection costs.

Judicial phase

During the judicial phase, you should take into account the following costs / fees :

• Bailiffs fees.

Issuing a subpoena by the bailiff costs money. The person issuing the summons advances this money (if you litigate on the basis of addition (only applies to low-net-worth individuals) , the Legal Aid Board advances this). The person who loses the procedure usually also pays for the bailiff’s costs (but not always).

• Legal aid + legal costs .

Your lawyer can initiate the procedure for you or even put up a defence in the proceedings initiated by the counterparty.

In the Netherlands, it is customary to claim a order to pay cost. In many cases this is also awarded to the party that is (largely) proven right by the court. However, this order to pay the costs is often only a fraction of the costs incurred by the winning party. (Unless there is an issue related to IP law.)

• Court fees.

As soon as the procedure has been brought before the court, you owe court fees. You can find out how high the court fee for a particular procedure is on this case-law website. https://www.rechtspraak.nl/Naar-de-rechter/Kosten-rechtszaak/Griffierecht/Paginas/Griffierecht-civiel.aspx

Here too, the losing party often has to reimburse the winning party’s court registry fees, but an important exception to this is most cases in personal and family law.

Rates (claims less than € 25.000)

Rates for civil procedures (claims over € 25.000)

• Extracts .

Often documents are required for a procedure. Just think of extracts, documents from the Land Registry or Chamber of Commerce but also medical documents in personal injury cases.

Most agencies do not provide these documents free of charge. The costs for requesting the necessary documents are often advanced by the an attorney at law and passed on to you.

Execution phase

• Collection costs .

If you have won a case, you still have to get what you are entitled to according to the judge. This may also involve costs, such as the costs of seizure and bailiff’s costs.