Act of familiarity: when does the renunciation period begin?

Resistance is an important legal remedy in procedural law. By means of opposition, a party convicted in absentia can still defend himself against a default judgment. A default judgment is entered when a party fails to appear before the court or the court fee fails to pay on time. A short period of time (4 or 8 weeks) applies for lodging an objection, and the start of that period is strictly enforced. This time limit starts to run, for example, the moment the convicted person performs an act “from which it necessarily follows that the judgment or commenced enforcement is known to him”, according to the law in Article 143 Rv. This is also called the ‘act of familiarity. In addition, the opposition period begins to run at the time the judgment is enforced, such as after a payment to the garnishee.

When is there an act of publicity in a default judgment?

The act of familiarity requires that it is outwardly obvious that the defendant has taken notice of the contents of the judgment. It is not necessary that the defendant has actually received or read the judgment. It is sufficient that the defendant is actually familiar with its substantive content. This can take place even a long time after the default judgment has been rendered, as a recent case of the District Court of Midden-Nederland (ECLI:NL:RBMNE:2024:2913).

What does an act of familiarity entail?

An act of familiarity can be anything: for example, a telephone conversation in which communications are made about the judgment. A payment made by the defendant to the bailiff as a result of the judgment can also be considered an act of familiarity. A WhatsApp conversation may also qualify as an act of familiarity under circumstances (ECLI:NL:GHAMS:2019:1740). The point is that the defendant is familiar with the plaintiff(s), the claim, the conviction and the court by which he was sentenced. An act from which it follows that the convicted person is aware of the commenced execution also makes the resentencing period commence.

Bank charges written off in attachment: act of familiarity?

According to the law, the objection period also starts to run at the moment a payment is made to the garnishee. At that time, he also knows that a judgment is directed against him. But what if the bank balance is negative, no money is remitted to the bailiff but bank fees are charged? The latter played out in a recent case that served before the court of appeal ’s-Hertogenbosch and in which judgment was rendered on Sept. 24, 2024.

Bank cannot remit anything to bailiff in case of negative balance

In that case, the bank cannot transfer money to the bailiff. However, the bank can charge costs for processing the attachment and deduct those costs from the (already negative) bank balance. The central question in the aforementioned judgment was whether this is sufficient to speak of a disbursement to the bailiff and the commencement of the renunciation period.

Foreclosure after default judgment on negative bank account

In this case, a default judgment was entered against the defendant in November 2021. The judgment was subsequently served, but not on him in person. As a result, the opposition period could therefore not yet begin to run. In order to enforce the judgment, the plaintiff decided to foreclosure to impose on the defendant's bank account. This did not result in a payment to the bailiff because there was nothing in the account. However, on April 8, 2022, the bank did charge €80 for processing the attachment. The bank deducted that from the (already negative) bank balance.

The collection by the bank of costs related to the attachment does not trigger the start of the renunciation period. This is because it is not on a par with payment to the bailiff.

Collection of bank charges does not trigger start of renunciation period

The subdistrict court ruled that the rescission period had already expired because the bank charges had been debited more than four weeks ago. The district court did not agree. It ruled that the cancellation period had not expired. Indeed, the court stated that collecting the bank charges could not be equated with paying the bailiff. Also, taking notice of the drop in the bank balance did not constitute an act of familiarity, because it was only a cost of administrative processing of the attachment, not a payment to the bailiff. By writing off the costs, the garnishee was not yet aware of the substantive content of the default judgment. The court emphasized that the defendant was not actually aware of the ‘substance’ of the default judgment until he had received the judgment by e-mail, and that the opposition period did not begin to run until that point.

Attorney at foreclosure of default judgment or filing of opposition

Are you facing a default judgment or want to know if an opposition can still be filed? Or do you want to execute a default judgment? Please contact the trial lawyer From Lexys Lawyers.