Has your debtor been sentenced in the legal proceedings to comply with the conviction, but has he, within the stipulated period, voluntarily failed to comply with it? Then as a creditor you have a number of options to enforce the compliance by the debtor.
Seizure
Does the claim concern a payment of an amount of money, for example a penalty payment? Then you can effectuate an enforceable seizure of the debtor’s assets. In principle, the bailiff can enforce seizure of all assets, for example wages, benefits and allowances, bank accounts, household assets and vehicles of the debtor.
However, the bailiff can’t apply his authority with regard to these goods and money without any limits. Before the bailiff makes an enforceable seizure of the wages, benefits and surcharges, he must take into account the debt-free foot of the debtor. That is the part of the wage, benefit and allowance that the debtor needs to live from. This may not be seized. In addition, the law states that certain household assets of the debtor may also not be seized. This concerns in particular the bed and bedding, clothing, food and drink for one month, the tools that the debtor needs to earn his living with and the things that, according to a notarial deed, do not belong to the debtor. Seizure may be imposed on other assets of the debtor, unless these assets are worth less than the costs of the attachment. In that case, seizure is unreasonable.
Does the debtor not pay the creditor, even after seizure enforcement? Then the bailiff can proceed with the execution of the seized goods and money. How it happens, depends on what the seizure rests on. If the bailiff has seized the debtor’s bank accounts, he will instruct the bank to pay him the money covered by the attachment. If the debtor’s assets are seized, the bailiff will take these goods with him and execute them publicly. Your claim will be paid from the proceeds. Law & More’s lawyers can see to it that the seizure and execution of the attachment goes smoothly. More information about batter and our services can also be found on our site: beslag.site.
Penalty payment and physical coercion
Does the claim concern other than a payment of an amount of money, then a penalty payment can be a means to force the debtor to comply with the main conviction. In most cases, the penalty payment is determined per violation or per unit of time to prevent the debtor from neglecting the obligation to comply with the main conviction. Will the debtor not be restrained by the penalty payments and will compliance with the main conviction still be delayed? Then the debtor creates a payment obligation for himself. After all, the periodic penalty payments are forfeited in that case and can be executed.
Has the imposition of a penalty payment on the debtor not been able to achieve the desired effect? Then, as a creditor, you have another measure, namely the physical coercion, to force the debtor to comply with the main conviction. However, the physical coercion is considered to be the very last, most far-reaching measure. After all, in that case the personal freedom of the debtor is taken away. Physical coercion, or hostage-taking, is therefore only applied under very restrictive conditions and is only possible if no other alternative means of coercion (such as penalty payments) exists or may benefit and if the interests of the creditor justify their application. These strict conditions are rarely met in practice and the chances of success of this measure are limited. Physical coercion is not possible if the debtor is unable to meet his contractual and/or legal obligation. However, the measure of physical coercion occasionally has a chance of success in maintenance claims. In that case, the penalty payment cannot be pronounced considering the general prohibition to reinforce monetary convictions with a penalty payment and the physical coercion is therefore the only useful means of enforcement. If the physical coercion is imposed, its duration for the same obligation shall not exceed one year.
Early termination of debt restructuring and personal bankruptcy
Enforcing compliance with the judicial conviction by the debtor is not easy. However, it becomes more complex when you are dealing with a debtor to which the debt rescheduling scheme applies. The debtor in such a position has to live on a minimum amount for three years and to repay his creditors as much as possible. This usually means that such a debtor does not have expensive assets or a lot of money that can be seized in order to recover your claim. After all, the debtor in the debt restructuring is required to sell his expensive goods, such as cars, and even to live smaller. The periodic penalty payments will also probably not have the intended effect, simply because the debtor, partly considering his other debts, has no money to pay these, often high, amounts. Physical coercion is possible, but is rarely applied in practice and only under very strict conditions. What other options do you then still have as a creditor?
Under certain circumstances, the early termination of the debt restructuring and the personal bankruptcy of the debtor can be achieved. This is possible if the debtor does not comply with the debt restructuring rules and does not make sufficient efforts to obtain as much money as possible for the creditors, frustrates the course of business, when he creates new excessive debts or when he tries to disadvantage his creditors. In such cases, his administrator may request the court to terminate the debt restructuring early and to declare the debtor personally bankrupt. If the relevant claim is granted, the trustee in bankruptcy will examine whether there is money available for the creditors and whether there are goods that can be sold.
Does the bankruptcy not yield anything financially? Then the bankruptcy will be lifted “for lack of income”. The advantage of this is that the debtor can no longer be declared debt free. After all, if the debtor does comply with the rules for debt restructuring, he will get a “clean sheet”. This means that his debts are no longer due and the debtor can make a new start after three years. If the debt restructuring is terminated prematurely and the debtor’s personal bankruptcy is pronounced, all debts of the debtor remain open and you, as creditor, can later (try to) recover the outstanding debt.
