What is a judicial attachment?

What is a judicial attachment?
Published on: 30 May 2023

Table of contents

A judicial attachment is a legal procedure by which a court orders the retention or freezing of the property or assets of a person or entity, in order to secure the payment of a debt or financial obligation. It is a precautionary measure that is applied on a temporary basis, in order to ensure that the claimant can obtain fair compensation if he or she wins the case.

It is important to keep in mind that each situation is unique and the best way to avoid a garnishment depends on the specifics of the case. It is advisable to consult an attorney for legal advice to determine the best strategy for your particular situation.

Judicial attachment is a measure that is frequently used in civil and commercial law, although it can also be applied in criminal law cases, especially those involving economic crimes. In general, the main purpose of judicial attachment is to ensure that a defendant does not conceal or dilapidate its assets prior to a trial or judgment.

In general, the procedure for applying for a judicial attachment begins with the filing of a complaint or a complaint with the competent court. The plaintiff must provide strong evidence to support its claim, and may request the court to order a lien or levy to secure payment.

Once an application for judicial attachment has been made, the court must evaluate the application and determine whether there is sufficient evidence to justify the measure. In some cases, it may be necessary to provide security or collateral to secure payment, or to provide detailed information about the property or assets to be seized.

Once attachment has been ordered, the defendant must be notified and provided with an opportunity to present its own arguments to the court. If the defendant can show that the attachment is unjustified or has been wrongly applied, the court may revoke the measure.

What assets can be seized?

Attachment of property is a precautionary measure that can be ordered by a judge or court to secure payment of a debt or financial obligation. The assets that can be seized vary according to the laws of each country and the nature of the debt or financial obligation in question.

In general, the assets that can be seized are those that have an economic value and belong to the person or entity that has incurred the debt or financial obligation. The most commonly seized assets include:

  1. Bank accounts: The attachment of a bank account can be done by withholding the entire balance or a specific amount to secure payment of the debt.
  2. Real estate: This is usually the most commonly seized property. Attachment may take the form of a preventive annotation in the land registry, which prevents the property from being sold or mortgaged until the debt is paid. A forced sale of the property may also be ordered to obtain payment of the debt.
  3. Vehicles: The retention of the vehicle can be done by blocking or immobilising it, or by its forced sale.
  4. Wages and salaries: In many cases, there is a legal limit on the amount that can be garnished. Wage garnishment is done by withholding a portion of wages until the debt is paid.
  5. Jewellery and valuables
  6. Stocks and other financial assets: Stocks, bonds, certificates of deposit, among others, can also be subject to garnishment.

It is important to note that there are certain assets that, by law, are protected and cannot be seized under any circumstances. These include goods and tools necessary for the performance of a profession or trade, as well as goods that have sentimental value, such as family photographs, wedding gifts, among others.

It is also important to note that, in some cases, the attachment may be subject to an opposition or challenge. The defendant can file an opposition to show that the assets do not belong to him or her or that they have been valued incorrectly. In addition, there may be a limit to the amount of assets that can be seized depending on the nature of the debt and local laws.

Types of attachment

Two types of judicial attachment can be distinguished:

  1. A lien is one that is applied before a lawsuit or lawsuit is filed, in order to ensure that the suing party does not conceal or dilapidate its property or assets. Generally, this type of lien is sought by court order, and usually requires the defendant to provide collateral or cash collateral to secure payment in the event of a successful case.
  2. Enforcement attachment, on the other hand, is one that is applied once there has been a judgment or court order for the payment of a debt or financial obligation. In this case, the court may order the attachment or seizure of the defendant's property or assets in order to ensure that the defendant complies with the judgment or order.

Who orders attachment?

Judicial attachment is ordered by a competent judge or court. In general, the process begins when a person or entity that has an outstanding debt is sued by the creditor. If the judge determines that the debt is legitimate and has not been paid, he or she may order a judicial garnishment to ensure that the creditor receives the payment owed to him or her.

How to avoid a garnishment?

The best way to avoid a garnishment is to pay outstanding debts in a timely and complete manner. If you are having difficulty paying a debt, it is important to contact the creditor to negotiate a payment plan or seek alternative solutions.

If legal proceedings have already been initiated and there is a possibility that a garnishment may be ordered, the following options can be explored:

  • Negotiate a payment agreement
  • Raising a legal defence
  • Exceptions to enforcement
  • Filing for bankruptcy
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