Seizure on a bank account is quite a nuisance for the person it affects. This certainly applies if the bank sets aside the entire balance of the account, while the stake in the legal dispute is lower than the balance. What is a quick solution to clear the bank account?
Two types of batter
Attachment on a bank account (officially: garnishment) has two variants. Attachment that is made before a judge has ruled on the claim is called preservative attachment. Attachment that is levied after the judge has rendered a decision is called enforcement attachment.
Preservation attachment procedure
Prejudgment attachment is unexpectedly levied by the plaintiff’s lawyer who wants to start proceedings. In this phase, the claim still has to be fulfilled. Prejudgment attachment can also be imposed during a procedure, before the decision has been made. For prejudgment attachment, the court must grant permission (leave) through a short and quick procedure. What is special about this procedure is that the opposing party is (usually) not summoned. Preservation attachment is therefore often an unpleasant surprise, especially if the person affected does not agree with the guilt and wants to defend himself.
Execution attachment serves to enforce a judgment. The claim has already been assigned and payment must be made. However, it is possible that the party that is convicted will appeal . Then there is a chance that the awarded claim will still be rejected by the higher court. The amount collected via attachment must then be repaid. This involves a risk. This is known as “refund risk”. For that matter, enforcement of a judgment against which an appeal is still open or pending is only possible if the judgment has been declared provisionally enforceable.
Seizure is therefore quite difficult: the liquidity position is affected and the bills can no longer be paid. If the lawsuit has yet to be conducted, it can take a long time: proceedings on the merits sometimes take more than a year. In this article I will discuss the strategy that a party that has been seized can follow to lift the attachment and free the bank account again.
Is the batter good?
The first question to be asked is whether there are valid reasons for seizing the property. If the claim for which the attachment has been seized is clearly not valid, then the removal of the claim can be requested by means of summary proceedings . If the judge lifts the attachment, the bank will release the account. However, this solution only works if the party affected by the attachment can demonstrate through summary proceedings – a procedure that does not go very deep – that the claim is unsound. That is not always possible, a preliminary relief judge cannot always assess that.
At the opposite extreme, the possibility that the claim will most likely be awarded is opposed to the possibility that the claim will be unjustly seized. The person who is affected by the attachment must then ask himself whether it is not better to reach a settlement by negotiating. A good lawyer will point out to his client that this is the fastest and certainly the cheapest solution to the legal problem. If the opposing party has a strong case and is likely to win, you should consider spending money on a lawsuit.
Outcome of lawsuit uncertain
It is more difficult with cases of which the outcome is more difficult to predict. Such cases are usually litigated until it is clear what the judge thinks about it. The lawyer of the party affected by the attachment will also put the attachment on the agenda of the proceedings. He or she does this by submitting a counterclaim requesting that the attachment be lifted and that the damage be compensated. The judge will grant this counterclaim if he rejects the claimant’s claim.
Is there a solution for attachment in long-term lawsuits?
In long-running lawsuits with an uncertain outcome, the party affected by attachment is in a difficult position. After all, summary proceedings to lift the attachment do not stand much chance, that only works if it is virtually certain that the claim for which the attachment has been attached will fail. But that is precisely the question. And the alternative: paying or reaching a settlement is also not very attractive, if you believe that you do not owe the amount claimed in full or at all. After all, you want to hear whether the judge agrees with your defence. Is there anything that can be done to eliminate the disadvantages of attachment?
Exchange attachment for other security
There is indeed a solution to free money in the event of a seizure on a bank account. Most banks separate the entire bank balance at the time of attachment. It can therefore happen that € 50,000 is seized, while € 100,000 is in the account. The attachment affects the entire balance of €100,000 while only €50,000 is needed to pay the claim if it is awarded (which remains to be seen: the claim can also be rejected). The leeway in this example of € 50,000 can be used to lift the attachment.
Third-party account lawyer
The most practical and quick solution is to offer the attaching party that € 50,000 is deposited from the balance affected by the attachment into the third-party account of one of the lawyers involved. This lawyer is obliged to keep the deposited amount until it is clear who is right. After that, he has to pay out “on an equal basis”. If this is properly put on paper, the bank will transfer the amount to the third-party account and the remainder of the account will be released again. The details of the agreements are very important. Does the money have to be paid out as soon as the court has rendered its decision? Or should the lawyer keep the reservation if an appeal is lodged? The conditions sometimes have to be negotiated vigorously.
Does the attaching party have to cooperate with this?
Whoever seizes exerts a lot of pressure and power. However, the balance of power is restored if the party that has been seized is willing and able to provide alternative security via a trust account. The attaching party can refuse a solid proposal if he wants to oppose, but the judge in summary proceedings will not be satisfied with this if the claim of the attaching party has not yet been assessed. Anyone offering a guarantee via a third-party account by depositing an appropriate amount into the third-party account can therefore successfully enforce the lifting of the attachment in court, even if the attaching party behaves unreasonably.
Attachment is a strong instrument in the hands of a creditor, even if he has not yet submitted his claim to the court. This certainly applies if it is still questionable whether the requirement will be granted. A number of solutions are conceivable to eliminate the disadvantages of fitting. If a lawyer gives advice in this regard, he will pay attention to the success of the claim of the attaching party. Sometimes it is better to just pay to avoid an expensive lawsuit. In other cases, action must be taken against the attachment because the claim does not stand a chance, and then there should also be no annoying attachment. The situation is more subtle with lawsuits whose outcome is difficult to predict. But even then, the disadvantages of attachment can be eliminated by offering security. A frequently used arrangement is a deposit into a lawyer’s third-party account. This offers the attaching party just as much security as an attachment. For that reason, an attaching party who rejects such a proposal can, if necessary, be taken to court to accept the proposal. After that, it must become clear in the lawsuit whether the claim is well-founded or not.
Written by Marius Hupkes