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Seizure of assets in Germany

Seizure of assets in Germany

Debt collection in Germany implies several steps. The first one is the amicable attempt to recover the outstanding amount of money, followed by the court proceedings if the sum was not recovered and ends with the seizure of assets which is ordered by the judge.

In Germany, when a debtor can not honor payment to a creditor after a judge’s decision has been issued, the bailiff may start the seizure of assets procedure.

If you find yourself in the unpleasant situation of recovering a debt through a seizure of assets order, our debt collection lawyers in Germany can assist you.

Protection of the creditor in debt collection in Germany

One of the most important provisions of the German Civil Code with respect to debt collection is related to the protection of the creditor who is allowed to use all legal means for recovering a debt. One of these measures refers to the freezing or confiscation of the debtor’s assets.

The measures under which the seizure of assets in Germany is imposed can be provisional or can imply the application of interim rulings. The measures which can be taken when recovering debt in Germany are:

  1. the pre-judgment seizure of the debtor’s assets and up to the arrest of the defendant;
  2. an interim injunction under Section 935 of the Civil Code which can provide for the defendant to not be allowed to use the assets;
  3. the notice of imminent attachment of a debt under Section 845 of the Civil Code in Germany;
  4. the enforcement of provisionally enforceable judgments covered by Section 708 in the Civil Code;
  5. under EU regulations, German courts can also acknowledge and provide for the enforcement of court decisions issued by EU courts.

While the notice of imminent attachment represents a private means of enforcement on behalf of the creditor, the enforcement of judgment implies the enforcement of a court order even if the defendant has the right to an appeal.

If you need more information on the protection measures a creditor is entitled to in debt collection in Germany, our lawyers can provide it for you. You can leave the procedure of recovering small amounts of money to debt collection agencies in Germany, however, if the case is likely to end up with the seizure of assets, specialized legal advice is recommended.

The main requirements under which the seizure of assets is ordered in Germany

The Civil Code of Procedure in Germany asks for specific conditions to be met in order for a court to dispose the seizure of assets of a debtor. The first and most important one refers to the solid grounds for the confiscation of assets to be allowed. In this case, the creditor must prove the existence of the debt.

In case all the assets of the debtor are to be seized, the creditor must prove that the debtor is dishonest about their intention or plan to bypass the execution of the German court’s order.
If a notice of imminent attachment of debt has been issued, there is no need for a hearing to take place.

Our debt collection lawyers in Germany can help creditors prove their cases in the court of law.

Assets which can be seized in Germany

The debtor’s movable and immovable goods may be seized and also assets on the premises of a third party with the authorization of the court, as provided by the Art.1503 of the Judicial Code.

Only the current assets may be seized and the fruits of the goods also make the subject of this procedure in the case of attachment in execution of a judgment, unless the debtor dishonestly renders himself insolvent.

The statutory provisions or the nature of goods may turn the goods into unenforceable assets. In this sense, the goods mentioned below cannot be attached:

  • goods that ensure a reasonable living for the debtor and for his family;
  • goods that, by selling, have no value;
  • inalienable goods as they are closely associated with the debtor’s personality;
  • incomes and wages of minors
  • unpublished art, such as books, music, paintings
  • the amount of money earned by prisoners from prison jobs;
  • maintenance payments for the non-culpable spouse, as provided by the court
  • a minimum amount of income to ensure a modest lifestyle for the debtor and his family

Claims and rights of the debtor against third parties are seized by attachment order of the executing court. In this case, the seizure represents a sovereign act, leading to the confiscation of the seized object. The main consequence of this measure is that the debtor loses the power to dispose of the object once it is removed.

A debtor who has provided a sworn statement of assets or who have been arrested for refusal to do so may be entered in the register of debtors at the enforcement court in which the enforcement proceedings are taken. Data from the register of debtors may be supplied to third parties in certain circumstances.

The creditor has the right to enforce an enforceable instrument for up to 30 years, after this period all the measures that could have been applied are prescribing and the creditor has full access to the goods.

The debtor may turn against him onerous measures in the enforcement proceedings. He is entitled to the remedy of memory against the manner of execution available. Decisions handed down in proceedings without a hearing, the debtor may avoid the immediate appeal. This is to be lodged within a period of two weeks at the court whose decision is contested, or at the District Court as a court of appeal.

Retention of Title in Germany

In Germany, when it is about the Retention of Title, the law provides supplier-focused regulations, which must be explicitly agreed upon before its delivery. The most important aspect is that the debtor must acknowledge the retention of title before receiving their first invoice.

There are three different kinds of Retention of Title:

Basic ROT: The goods supplied remain in the supplier’s property until the full payment.

Increased ROT: The goods supplied remain in the supplier’s property until all outstanding amounts from the open account or business relations have been fully paid.

Extended ROT: This measure implies the assign to the supplier in advance. The Commercial Code provides that an advance assignment is effective, while the non-assignment agreement is not.

The effects of seizure of assets orders in Germany

Once a court order for the partial or total confiscation of assets is issued by a German court, there are also certain effects to consider. The main effects of a seizure of assets order are:

  • the debtor can no longer use the assets executed under the order issued by the court;
  • third-party debtors will also lose their rights to use or dispose of the assets under the order (where such debtors exist);
  • the assets seized are protected against destruction under Section 136 of the Criminal Code;
  • within one month from the issuance of the judgment, the creditor can apply for the enforcement of seizure of assets order;
  • the creditor is also entitled to apply for an arrest or interim judgment order pursuant a trial;
  • with respect to interim injunctions, the bailiff can complete the order to seize the assets, in accordance with Section 883 in the Civil Procedure Code.

Our debt collection lawyers in Germany can offer more information on the provisions of the Civil Code with respect to the recovery of a debt through the seizure of assets.

Court fees in debt collection in Germany

When seeking to recover a debt in court, the Court Fees Act must be considered. Under its provisions, a full fee must be paid when the case ends with the seizure of assets. This fee is established on a case-to-case basis, in accordance with the value of the debt, however, the maximum amount is set at 500,000 euros.

The completion of the seizure of assets by the bailiff will also be subject to certain fees, which start at 2.50 euros for the preparation of the documents.

In numbers, insolvency and debt collection cases in Germany in the last few years indicate the following numbers:

  • in March 2019 the number accounted for 7,066 units, according to statistics;
  • this represented an increase from the 6,464 cases registered in February;
  • the number of debtors registered at the beginning of 2019 was 8,890;
  • this represents a decrease compared to the largest number of debtors of more than 12,000 registered in 2010.

If you need assistance in debt collection and seizure of assets cases in Germany, do not hesitate to contact our lawyers.