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Lifting Pre-Judgement Attachment and Attachment In Execution in The Netherlands
In the Netherlands a pre-judgement attachment (also known as seizure) can be effected on any object: your bank account, your wage, your house or your car. Most of the times a pre-judgement attachment will be asked because the debtor has not paid an invoice after several reminders. The purpose of a pre-judgement attachment is to prevent the debtor from frustrating the creditor’s means of redress.. Because the pre-judgement attachment has adverse effects, as a debtor you want the pre-judgement attachment to be lifted as quickly as possible. How and in which cases is that possible?
Pre-judgement attachment or attachment in Execution
In the Netherlands there are two types of attachments: pre-judgment attachment and attachment in Execution. Pre-judgement attachment is a protective attachment. In order to be able to impose a pre-judgement attachment, a petition filed by a lawyer, must be submitted to the court. In this petition, the court is requested to grant leave for attachment. The debtor will only be informed of this in case of a wage garnishment. If the court grants leave a pre-judgment attachment will be imposed. After the imposition of a pre-judgment attachment, the attaching party must start a procedure to have the claim reviewed by the court.
For an attachment in Execution a title is required. It’s not possible without a title. In contrast to a pre-judgement attachment, a judgement of the court already applies to an attachment in Execution. The bailiff can seize after the judgment of the court.
How can a pre-judgement attachment be lifted?
If, in the Netherlands, a pre-judgement attachment has been levied on, for example, your bank account, your home or your car, and you want to lift the attachment, you can start summary proceedings. Pursuant to Dutch legislation, the attachment must be lifted:
‘’If it appears to be summarily of the defectiveness of the right invoked by the attaching party or of the unnecessary of the attaching”
In short, you must demonstrate that the claims are defective or that the attachment is unnecessary. You must prove this if you request the court to lift the attachment. The claim is defective,if the claim is expired or if the claim does not exist at all.
In addition to the aforementioned grounds, you can also request the court to lift the attachment if the claim has been made for a monetary claim, and a sufficient security is provided. This is possible, for example, by providing a bank guarantee.
How can an attachment in Execution be lifted?
An attachment in Execution can also be lifted in summary proceedings. This is only possible if the judgment on the basis of which attachment was made, is based on a factual or legal error. There may also be circumstances after the judgment that make it necessary to lift the attachment. Appeal only against a judgment is not sufficient to lift the attachment in Execution.
If you want help to investigate the possibilities of lifting an attachment please contact mr. Luiten.
Cindy her advisory and litigation practice encompasses corporate law and insolvency law, as well as liability law and contract law with international aspects.