You have made a large delivery to one of your customers, but the buyer does not pay the amount due. What can you do? In these cases, you can have the buyer’s goods seized. However, this is subject to certain conditions. In addition, there are different types of seizures. In this blog, you will read everything you need to know about the garnishment of your debtors.
Precautionary vs. executory attachment
We can distinguish between two types of seizure, precautionary and executory. In the event of a prejudgment attachment, the creditor may temporarily seize the goods to be sure that the debtor will still have sufficient money to pay his debt later. After the precautionary attachment has been levied, the creditor must institute proceedings so that the court can rule on the conflict based on which the attachmenist is made. These proceedings are also called proceedings on the merits. Put simply, the creditor takes the debtor’s goods into custody until the judge has decided on the merits. The goods may, therefore, not be sold until that time. In an enforcement attachment, on the other hand, the goods are seized to sell them. The proceeds of the sale are then used to pay off the debt.
Both forms of seizure are not allowed just like that. To make a prejudgment attachment, you must obtain permission from the Interim Injunction Judge. To this end, your lawyer must submit an application to the court. This application must also state why you wish to make a prejudgment attachment. There must be a fear of embezzlement. Once the court has granted its permission, the debtor’s assets can be attached. Here it is important that the creditor is not allowed to seize the goods independently but that this is done via a bailiff. After this, the creditor has fourteen days to start proceedings on the merits. The advantage of the prejudgment attachment is that the creditor does not have to fear that, if the debt is awarded in proceedings on the merits before the court, the debtor will have no money left to pay the debt.
In the case of attachment for enforcement, an enforcement title is required. This usually involves an order or judgment by the court. For an enforcement order, it is therefore often necessary that the proceedings in the court have already been conducted. If you have the enforceable title, you can ask the court bailiff to serve it. In doing so, the bailiff will visit the debtor and give an order to pay the debt within a certain period of time (for example, within two days). If the debtor fails to pay within this period, the court bailiff may execute an attachment of all the debtor’s assets. The bailiff can then sell these goods at an enforcement auction, after which the proceeds go to the creditor. The debtor’s bank account can also be attached. Of course, no auction needs to take place in this case, but the money can be transferred directly to the creditor with the bailiff’s consent.