Lift seizure

If there prejudgment attachment has been placed, then the garnishee can sometimes be forced to lift it. This can be done by filing a summary proceedings start or by providing adequate security in lieu of the attachment. However, lifting a garnishment is not easy. 

Lifting attachment claims: the upside-down world

If you go to court and payment claims from your opposing party, you as the plaintiff must prove that the opposing party owes you something. The other party can defend against the claim and is heard by the court. In garnishment, this does not happen: the judge assesses (in principle, there are exceptions) only what the garnishee puts forward, and then grants leave for a garnishment. If you subsequently find that this attachment is unjustified, you, the garnishee, will have to make it plausible that the claim is not exists. Basically the opposite world, then. Moreover, in practice, judges turn out to be quite strict in lifting a garnishment.

Assurance

Therefore, if the attachment is for a monetary claim, an alternative may be to provide security. The garnishee is required by law (Art. 705 section 2 Rv) namely, it is required to lift the attachment if there is “adequate security is provided”. What exactly constitutes ‘sufficient’ security, however, the law does not specify. In practice, a bank guarantee is often provided for the claim. This has the disadvantage for the garnishee that in return for the bank guarantee a sum of money must remain on deposit at the bank. The advantage is that the bank guarantee, and thus the deposit, is as large as the claim for which attachment has been levied. If more than that is affected by the attachment, it is released back to the garnishee.

Bank guarantee often more secure than attachment

For the garnishee, the bank guarantee often provides more security than the attachment levied. This is because a bank guarantee can usually be enforced even if the garnishee bankrupt goes. Moreover, with a garnishment, there may be more garnishers, after which the proceeds must be shared. With a bank guarantee, this is not an issue.

Cancellation of attachment in case of improper information of court by garnishee

Another reason to lift a garnishment is if the garnisher has misinformed the court. The duty of truth contained in article 21 Rv state, is especially important in attachment law. Precisely because, as a rule, the garnishee is not heard beforehand, greater importance is attached to the requirement that the person applying for leave to attach must inform the court fully and truthfully. If this is not done, this is grounds for applying for a suspension of the attachment in summary proceedings.

Relief from attachment in case of unsound claim

Furthermore, an attachment may be lifted if it appears that the right invoked by the garnishee is unsound. For example, if the claim relied on by the distraining party turns out not to exist.

Wrongful seizure removal

So what is the best strategy to lift a wrongful seizure depends on several factors. Namely, whether it can be made plausible that the seizure is unjustified, whether the possibility exists to provide security, and so on. The lawyer at Lexys Advocaten can be of service in this respect, determine the strategy in consultation and, if necessary, demand the release of the seizure in the following cases summary proceedings.