Attachment is a powerful legal tool used to secure financial claims and to prevent assets from being withdrawn from the recovery of creditors. This article explains the procedure of attachment in the Netherlands, as well as the legal implications and focus points involved.
What is attachment?
Attachment is a legal procedure in which a creditor, through the intervention of a bailiff and with the leave of the court, seizes property belonging to a debtor to secure a claim. This can be applied to both tangible property and financial assets such as bank accounts.
Types of attachments
There are different forms of attachments:
- Conservatory attachment: This is an interim measure to prevent the debtor from disposing of his assets while the proceedings are pending. Conservatory attachment is made before there is a final court decision on the claim.
- Executory attachment: This type of attachment is made after a court decision (judgment, order) or other enforceable title has been obtained by which the claim can effectively be recovered from the debtor’s property.
Procedure of attachment
To levy a conservatory attachment, leave of the preliminary injunction court is required. To obtain such leave, the creditor must file a petition supported by documentation substantiating the claim. This concerns ex parte proceedings, meaning the party against whom attachment is sought will not be heard by the judge.
After obtaining the leave, the attachment is effectuated by a bailiff. The latter will inform the debtor of the attachment and, if required, register the seized property or assets.
After levying a conservatory attachment, the creditor must initiate main proceedings within a period set by the court (often 14 days) to have the claim reviewed on the merits. If the creditor succeeds in these proceedings, the conservatory attachment can be converted into an executory attachment, meaning the claim can effectively be enforced.
Legal implications of attachment
The debtor must respect the attachment and may not alienate or damage the attached property. At the same time, the debtor has the right to legally object to the attachment.
If the attachment is found to be unlawful, the creditor may be held liable for any damages suffered by the debtor as a result. This emphasizes the importance of careful consideration and substantiation before proceeding with an attachment.
Practical considerations
Choosing the right objects for attachment is crucial. It is important that these objects represent sufficient value to cover the claim, but also that the value thereof is not excessive compared to the claim amount (proportionality).
Good communication with the bailiff is essential. This professional can advise on the feasibility and strategy of the attachment.
In some cases, the conservation of attached goods can be complex, especially if the goods are perishable or require maintenance. This requires strategic consideration.
Conclusion
Attachment is a complex but essential aspect of the Dutch legal system in debt recovery. It requires accurate legal knowledge and careful execution. Creditors should be aware of the legal and practical implications of attachment and should seek legal advice at all times to strengthen their position and minimize risks.
Questions
What is the role of a lawyer in performing an attachment?
“To levy a conservatory attachment, permission from the preliminary relief judge is required. The creditor’s lawyer must submit a petition supported by documentation that substantiates the claim. Without the assistance of a lawyer, attachment is not possible.
After obtaining permission, the attachment is effectuated by a bailiff. The bailiff will inform the debtor (or the debtor’s lawyer) about the attachment and, if required, register the attached goods or assets.”
What characterizes a collaboration with Kneppelhout?
“A collaboration with Kneppelhout is characterized by responsible and thorough coordination with you as the client, with the bailiff, and with the preliminary relief judge to secure the maximum achievable results through attachment.”
More information
Do you have any questions or are you looking for a lawyer specialized in attachment? Please contact one of our colleagues of Trade, Industry and Logistics.
