The enforcement procedure is the last phase of the civil trial in which a creditor may achieve the rights settled by a court decision. If the debtor does not voluntarily comply with the obligation established by a court or a title, it brings out the enforcement proceedings. The German Law provides that it may be enforced obligations whose object is to pay a sum of money, a good or its fruits, bank accounts or may be taken any other measures permitted by law.
The compulsory enforcement represents the proceedings taken in accordance to a court decision when the debtor fails to fulfill voluntarily with a legal judgment and the enforcement title is a mandatory document in this procedure.
The penalty payment is another mean of exerting pressure on the creditor in order to comply with the payment decision issued by the court.
When an enforcement titles has been issued, the claim is enforced against the debtor’s assets, which may be attached and in the last instance sold to fulfill the payment.
It may also be used the precautionary attachments, procedure used in emergency cases, in order to place goods under the protection of the court. In this situation the debtor looses the control over his goods and it is forbidden to be sold or to take advantage of them in any way.
An application for attachment is needed for the judge’s decision to be taken, decision which may consists in fully permission for attachment, refusal or admitting a part of the claim. The decision must then be served to the debtor and to a bailiff who will execute further proceedings.
In Germany the bailiffs have a public status, which means that they are authorities named and controlled by the state and in the name of the state and they are included in the public servants category.
An effective enforcement measure that may be taken against the debtor is by blocking his bank accounts or his claims against tax offices, life insurances, employer or any possible claim against any third party.
The enforcement in movable goods represents a standard procedure which comes in charge of the bailiff. This authority must identify the debtor’s movable goods which can make the object of liquidation in favor of the creditor and to take the measures in order to seizure those assets. There are some certain goods that can not make the object of enforcement, as a general rule provided by the Law, the goods necessary to ensure a minimum lifestyle for the debtor and his family.
When the bailiff does not identify movable goods which can make the object of enforcement, a statutory declaration from the debtor is needed. In case the debtor refuses to make this declaration or when he does not honor the bailiff request for an appointment set up for the affidavit, the creditor has the right to make further proceedings. In this case, the creditor has to file for an arrest warrant before the court, which, in case it is admitted by the court, will be executed by the bailiff with support from the police.
A debt collection procedure by an enforcement measure may be applied on the debtor’s immovable goods. When the debtor has in his property real estate goods, the claim is recorded in the land register and the debtor may not sell the goods. The next steps are the attachment of the good and the selling procedure or the good may be taken under sequestration by court order, in case there are tenants that use that real estate property.
The enforcement of immovable goods is more expensive and complicated and it may become a long procedure to get a copy of the record and also to sale or to sequestrate the good.
The average time for enforcements for monies is four to eight weeks, while the procedure for movable goods may take six to nine month in the western Germany and up to twelve month in the eastern Germany (situation created by the lack of public servants in this part of the country). When it is about enforcement of the immovable goods, the solving time for the procedure is hard to be estimated because it depends on the court, the possible banks and buyers for the goods.
The insolvency procedure may also be a measure for recovering debts. A debtor may be considered insolvent when the funds available are insufficient to pay the debt. Insolvency is imminent when it turns out that the debtor will not pay, at maturity, outstanding liabilities incurred with the available funds on the due date.
The purpose of this procedure is to pay the debts by liquidating the assets of a debtor or company or by collecting the enforceable income of an individual who is declared bankrupt.
The debtor or the creditor may file a request for insolvency and a preliminary liquidator is appointed in order to assure that the assets are sufficient to cover all the costs, including court fees and the amount of the claim. When the confirmation is available, the creditor may submit their claim and take benefits of the assets delivered under retention of title.