Our Dutch lawyers in the Netherlands have a strong reputation when it concerns pre-judgment attachments under Dutch law. It has always been relatively easy for a creditor in the Netherlands to obtain a court order freezing his debtor’s assets. This is possible even before the court has ruled on the merits of the creditor’s disputed claim. Such an early provisional attachment is known in Dutch as ‘conservatoir beslag’ (“pre-judgment attachments”). In this way, the creditor can prevent the options for redress from going up in smoke. The judgment on the merits often requires time and patience. In this article, our Dutch Lawyers in the Netherlands discuss how pre-judgment attachment works, for example in relation to debt collection in the Netherlands.
PRE-JUDGMENT ATTACHMENTS UNDER DUTCH LAW: RELATIVELY EASY
A pre-judgment attachment under Dutch law is levied by the bailiff on the debtor’s possessions. For example, the debtor’s house, business premises, car, and bank account(s) can be attached, or the debtor’s salary garnished. It is even possible for several creditors to attach the same assets. The guiding principle is then that the proceeds are divided proportionally
PRE-JUDGMENT ATTACHMENTS: IN PRACTICE
A pre-judgment attachment is relatively quick and easy to obtain. An attorney-at-law must first submit a petition to the Interim Injunction Judge of the District Court. The petition must state the extent of the creditor’s claim(s) and why a provisional attachment should be ordered. As soon as the judge grants permission, the bailiff can enforce the claim(s). The judge often grants permission within fourteen days, whereas proceedings on the merits can take up to six months, if not longer. This is feasible essentially because an application for provisional attachment does not usually involve a hearing with the debtor. If wage garnishment or attachment with judicial custody are ordered, the judge will usually hear the debtor.
CONTESTING PRE-JUDGMENT ATTACHMENTS (SEIZURE)
As no hearing is involved, a pre-judgment attachment can often come as a surprise to the party whose assets have been attached. In addition, the party that petitioned for the attachment can leverage it as a form of coercion; the debtor’s assets are going to be taken away anyway. Is there nothing a debtor can do to contest pre-judgment attachment? There is, in any event, no appeals procedure available against pre-judgment attachment orders. A debtor’s only recourse is to initiate summary proceedings in which the court is asked to lift the pre-judgment attachment. This is known as a settlement case. A judge will, for example, refuse a petition for pre-judgment attachment if it is insufficiently substantiated or if the underlying claim cannot be verified. It is therefore crucial that the petition for pre-judgment attachment is carefully substantiated.
INTERIM RELIEF PROCEEDINGS AND THE EXPENSES THEREOF
A creditor is obliged to initiate proceedings on the merits fairly quickly after an order of pre-judgment attachment has been issued. Expenses related to the order of pre-judgment attachment can, therefore, be claimed in those proceedings. If proceedings are not started in a timely manner, the order of pre-judgment attachment will lapse and the creditor is ordered to pay the costs incurred. This also happens if it appears during the proceedings on the merits that the claim is not justified, cannot be verified. In that case, the ‘debtor’ (read: injured party) can claim damages from the party that applied for pre-judgment attachment.
Dutch lawyer specialized in prejudgment attachments under Dutch law
Would you like to seek pre-judgment attachment or has someone had your assets frozen? At MAAK Advocaten, we specialise in provisional attachment. Please feel free to contact us.
