You may have seen the term “prejudgment attachment” pass by. In this article we will explain what prejudgment attachment is and how the process of prejudgment attachment works.
What is precautionary attachment?
The word “conservatory” is derived from the verb “conserve,” or preserve. When an attachment is made, goods or property are preserved until the court has made a final decision. A prejudgment attachment is usually used to prevent the other party from disposing of or mortgaging goods or property. There are various types of prejudgment attachment possible. Consider, for example, prejudgment attachment:
- under third parties (such as bank seizures and wage garnishment);
- under the debtor himself;
- on an immovable property (such as seizure of a home);
- on movable property (such as seizure of cars, boats, or trading stock);
- on registered shares, and registered securities that are not shares;
- On ships;
- on aircraft.
To illustrate an example. Car company X has sold a car to Y. Subsequently, Y fails to pay the invoice of the car to X. Y can pay the invoice, but has no desire to pay the invoice. In that case, X could, for example, consider making a prejudgment attachment on the car or on Y’s bank account.
When may you have a prejudgment attachment imposed?
The process of garnishment works as follows. A lawyer files a petition with the preliminary relief judge of a district court. This petition is also called an ‘attachment petition’. The application for attachment indicates, among other things, what type of precautionary attachment is desired and what the underlying claim is.
The application for attachment is then summarily reviewed by the interim relief judge of a court. The judge in preliminary relief proceedings informs the lawyer whether or not to grant ‘leave’ (permission) for the attachment to be made.
If the judge grants leave, the lawyer receives a so-called ‘leave order’. As soon as the order for leave has been received, the bailiff can go ahead and impose a prejudgment attachment.
What happens after a prejudgment attachment has been levied?
After the precautionary seizure has been made by the bailiff, a ‘claim in the main action’ will often still have to be filed. This is a procedure before the court concerning the dispute on which the attachment is based. In most cases, the claim in the main action is instituted by issuing a writ of summons. It is also possible that the precautionary seizure is made during ongoing proceedings. In that case, it is not necessary to institute a new ‘claim in the main action’.
Would you like to know more about prejudgment attachment?
Would you like to assess whether a prejudgment attachment can be levied on the assets of your counterparty, or has a prejudgment been levied on you yourself, and would you like advice on this? Then you have come to the right place. Please feel free to contact us. Gentia Niesert, procedural law attorney at LVH Advocaten in Rotterdam, will be happy to help you.
