Update: changes to attachment and enforcement law

If a creditor has won a proceeding, the most comfortable thing for him or her is for his or her debtor to pay voluntarily. Unfortunately, however, this is not always the case. Attachment and execution law allows for the forced enforcement of a court order if the debtor does not comply of his or her own accord.

The law of attachment and execution has recently undergone some important changes. The purpose of the change in the law is threefold: (1) to prevent a debtor from being unable to support himself as a result of the attachment, (2) to make attachment and execution more effective and efficient, and (3) to prevent attachment from being used solely as a means of exerting pressure.

The law took effect in phases. On April 1, the last phase went into effect, meaning that the entire law change is now in effect.

Time for an update with the most important changes!

1. Pressure fittings

Before the change in the law, movable property was regularly seized in practice, even if it was foreseeable that the costs would exceed the proceeds. In such cases, the seizure and execution usually only served as a means of pressure to force the debtor (as yet) to make payment.

Under the new attachment law, the seizure of movable property is in principle prohibited if it is reasonably foreseeable that the seizure costs will exceed the proceeds. This change protects debtors who are willing but unable to pay.

There is an exception: attachment is allowed if the creditor can make a plausible case that the debtor's interests will not be disproportionately affected by the attachment and execution.

2. Administrative seizure of motor vehicles and trailers.

The change in the law makes it easier to seize a motor vehicle or trailer.

Previously, attachment was possible only if the bailiff had seen the vehicle in person. This often resulted in a real treasure hunt to find and attach the vehicle. If the vehicle could not be located, attachment was not possible and the creditor incurred unnecessary costs.

Since April 1, it has been possible to administratively seize a motor vehicle or trailer without the bailiff having seen the vehicle in person and with the seizure being recorded in the RDW's vehicle registration register.

The entry in the vehicle registration register also makes the attachment known to potential buyers of the vehicle and allows the RDW to cooperate in a new registration if necessary.

In addition, the bailiff may give the debtor an instruction to surrender the vehicle for execution. If the debtor does not follow this instruction, the bailiff may file a report.

3. Foreclosure of movable property for regular existence

Certain goods, which a natural person needs in everyday life, are not subject to attachment.  

Because the old law stating exactly what goods were involved was from the ^19th century, the list of these goods was severely outdated.

This has now changed. Due to the change in the law, everything required for "regular existence" must remain unmolested.

These include, for example, non-superfluous household effects, clothing, food, personal care goods, as well as goods for personal needs such as a walker, children's toys, wedding rings, goods required for work or study (such as a computer or telephone), and even a pet. These are items that generally have little asset value and thus are not interesting as objects of recovery for a creditor.

Only excess goods - such as other expensive jewelry and art - may be fittings.

4. Auction via internet

Before the change in the law, only immovable property was allowed to be auctioned via the Internet. From now on, movable property may also be auctioned digitally.

Not only can this reach a wider audience, it can also ensure higher revenue and lower costs.

5. Bank seizure free foot

When seizing wages, for example, a portion of the wages should remain unseized. This is called the "attachment-free foot," which the employer must apply so that the employee has enough money to live on.

In the case of bank account attachment, no attachment-free foot applied before the change in the law. Thus, by garnishing a bank account of a natural person just after the deposit of wages - for example, around the ^27th of the month - virtually the entire wage could be garnished and de facto the garnishment free foot circumvented.

Due to the change in the law, this is no longer possible. From now on, even in the case of attachment of a bank account of a natural person, the attachment-free foot will apply.

6. Inventory of bank accounts.

As a creditor, in principle, you do not know at which bank your debtor banks. Therefore, in practice, a creditor often seized under several banks, which entailed additional costs.

The amendment of the law gives the bailiff the possibility to inquire at all banks in the Netherlands where the debtor banks. The debtor himself already had this obligation by virtue of the information obligation of article 475g Rv.

However, practice shows that the debtor himself does not readily provide this information, even if he is obliged to do so and this information can be enforced through summary proceedings.

For this reason, we believe it is a welcome addition that information about bank accounts can be requested from banks. In our experience, banks do provide this information if requested. As a result, bank seizures can then be made more effectively and cheaply.

In addition, banks - if a seizure is subsequently made - must declare within two weeks whether the seizure was effective. Previously, that was four weeks.

7. Jurisdiction in foreclosure disputes.

A debtor who disagrees with his creditor's attachment and enforcement measures may take the matter to court. This is called an enforcement dispute. Before the change in the law, it was sometimes not (entirely) clear to which court the debtor should then turn.

The change in the law eliminated this uncertainty: only the subdistrict court has jurisdiction in proceedings on the merits to take cognizance of enforcement disputes that have arisen after a judgment rendered by the subdistrict court. In summary proceedings, parties can choose between the subdistrict court or the judge in preliminary relief proceedings. This was the case previously.

Conclusion: take advantage of the changes in attachment and enforcement law!

Attachment and execution law allows for the forced enforcement of a court order if the debtor does not comply with it of his own accord.

Seizure and foreclosure law has undergone some significant changes in recent times, sometimes in favor of the creditor, sometimes in favor of the debtor.

In this article, we have described the main changes, taking a closer look at the position of the creditor and debtor.

Are you wondering what the changes in attachment and enforcement law can mean for you specifically and how you can benefit from them in concrete terms? Then contact one of our high-end debt collection specialists!

Written in cooperation with Kenya Limburg