Garnishment

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The liquidation of household goods , genre picture of a seizure, 19th century

In enforcement law (also called execution in Austria ), a seizure is the state confiscation of the debtor's objects for the purpose of satisfying the creditors .

General

The debtor pays the overdue receivables not the creditor, the creditor may lodge his claims in the context of the enforcement of using courts forcibly trying to collect. The prerequisite is an enforceable title (e.g. § 704 ZPO) with an enforcement clause ( § 725 ZPO) and its delivery to the debtor. The most common title is the enforcement order ( Section 688 (1) ZPO), which deals with the payment of a certain sum of money in euros . If the debtor does not object to a payment order , an enforcement order ( Section 692 (1) ZPO) is issued at the request of the obligee , from which the obligee can pursue foreclosure.

The debtor's movable property that is in his property is subject to attachment . The consequence of an effective attachment is entanglement and the right of attachment . A seizure is prohibited by law if it cannot be seized .

Germany

In Germany, the seizure is based on the provisions of the Code of Civil Procedure (ZPO). In private law, it requires an enforcement order which must be served on the debtor. The enforceable title replaces the enforcement order in public law .

species

The seizure differentiates according to the type of the pledged object:

Attachment of physical property

The specific procedure of a seizure is generally regulated in § § 753 ff. ZPO as well as the uniform state law enforcement agency (GVGA) issued by the state judicial administrations.

Search of the apartment

The attachment is carried out by a bailiff (in private law) or an enforcement officer in public law. The bailiff looks for attachable objects in the debtor's home . This includes all non-essential items. A number of objects (especially simple household items, work equipment and the like) cannot be seized (seizure protection, see list in § 811 ZPO).

Procedure and effect of the attachment

If the enforcement officer finds what he is looking for, he takes the objects or puts a pledge seal on them , the so-called cuckoo . Before the seizure, however, the enforcement officer should also weigh the value of the item against the costs arising from the seizure, as these must also be paid by the debtor. Often only a few particularly valuable or as good as new devices are seized because others would not cover the debt with their value. One speaks of a pocket attachment if, for example, the cash that the debtor is carrying is attached. Legally, the seizure by the bailiff entails the entanglement of the seized item and the creation of a lien . The extended rights now make the obligee into a pledgee .

The attachment of an already attached item (no claim: see Thomas / Putzo § 829 marginal number 2 ZPO) for a further monetary claim is called follow-up attachment . The old or, what is more common, a new creditor can be the creditor ( § 826 ZPO). In the case of several creditors, according to Section 827 of the German Code of Civil Procedure (ZPO), each creditor can carry out the realization himself, whereby the first pledgee is usually satisfied first. The bailiff who acts first is responsible.

How the seizure should actually take place is only rudimentarily regulated in Germany. Since there is currently no "Bailiff Act", the legitimation and activity of the bailiff result from § 154 GVG (Judicial Constitution Act) and above all §§ 753 ff. ZPO. The uniform bailiff business instructions issued by the state justice administrations apply across the country . It regulates the manner of foreclosure, compliance with which is the official duty of the bailiff. Breaches of duty, which in practice are in particular omitted enforcement measures , over- attachments or the enforcement of non- attachable property, can lead to claims for damages by the affected creditor or debtor from official liability in accordance with § 839 BGB lead.

In the literature it is sometimes criticized that the provisions on attachment of property ( §§ 811, 811a ZPO) have remained practically unchanged since 1877 and are only adapted or interpreted by the case law on a case-by-case basis. This means that there is considerable legal uncertainty in this entire area, which is increasingly affecting large sections of the population.

Recovery

Seized items are publicly auctioned ( § 814 ZPO), either on site or as a generally accessible auction on the Internet via an auction platform, seized money is to be delivered to the creditor ( § 815 ZPO), seized securities are if they have a stock exchange or market price, to be sold by the bailiff at the daily rate ( § 821 ZPO). When using unseparated fruit, the bailiff has to have the harvest carried out ( § 824 ZPO). At the request of the obligee or the debtor, the bailiff can also use a seized item in another way, for example transferring ownership to the obligee himself or to a person named by the obligee ( Section 825 (1) ZPO).

The auction begins with the minimum bid. The claims of the creditors are satisfied from the proceeds of the auction. If there is still money left over, the debtor receives it.

Attachment of claims and other property rights

The attachment of claims and other property rights is regulated in §§ 828 et seq. ZPO and takes place in the German private law generally by the enforcement court adopted attachment and transfer decision , the public right by means of a by executing authority issued attachment available . Also domains are the opinion of the Supreme Court subject to attachment.

Garnishment Exemption Limits

Garnishment exemption limits in EUR
from to Dependent full
attachment
from the
maximum amount
0 1 2 3 4th ≥ 5
January 1, 2002 June 30, 2005 0930 1280 1475 1670 1865 2060 2851
July 1, 2005 June 30, 2011 0990 1360 1570 1770 1980 2190 3020
July 1, 2011 30th of June 2013 1030 1420 1640 1850 2070 2280 3118
July, 1st 2013 June 30, 2015 1045 1438 1657 1876 2095 2314 3166
July 1, 2015 June 30, 2017 1074 1480 1710 1930 2160 2380 3292
July 1, 2017 June 30, 2019 1140 1570 1800 2040 2280 2520 3476
1st July 2019 June 30, 2021 1180 1630 1870 2120 2370 2620 3613
Non-attachment portion
above this limit		 30% 50% 60% 70% 80% 90% 0%

In Germany, a debtor is allowed to keep part of his monthly net income when his income is attached. The amount of the seizure exemption limit is graded according to the number of maintenance obligations of the debtor (employee).

  • Income below the exemption limit remains free from attachment.
  • Income that is above the exemption limit and below the maximum amount remains non-attachable at the stated percentages.
  • Income above the maximum amount is garnished in full.

The amount exempt from attachment can be increased at the debtor's request if he is otherwise unable to secure the necessary livelihood ( § 850f ZPO), as in the case of more than five dependent persons, high accommodation costs, dietary meals ( § 850f ZPO).

Income from overtime is only 50 percent, vacation pay cannot be seized at all. The annual bonus ( Christmas bonus ) is non-attachable up to half of the monthly income, up to a maximum of 500 euros. A number of other types of income cannot be seized, or only under special circumstances (such as allowances for the blind, compensation for pain and suffering ( § 850a , § 850b ZPO)).

Calculation example (without maintenance payment, without the above exceptions): With a monthly Net income of € 2600, the seizure allowance is € 1573.66, i.e. In other words, a maximum of € 1,026.34 can be seized.

On July 1 of every odd year, the seizure exemption limits change according to the percentage change in the basic tax allowance according to Section 32a (1) No. 1 of the Income Tax Act (EStG) in the version applicable on January 1 of the respective year.

Garnishment protection

Since January 1, 2012, a garnishment protection account ( P-account for short ) has been required in Germany for seizure protection for account seizures in accordance with §§ 829, 833a ZPO . Every bank in Germany has therefore been legally obliged since July 1, 2010 (as part of a transitional arrangement to prepare for the new account seizure protection law from January 1, 2012) to transfer an existing account to a seizure protection account at the request of a customer (only for a natural person) to convert. This means that it is no longer possible to block accounts up to a so-called seizure protection amount regulated by law (and for a certain period of time). Only one P account is possible per person. Seizure-free social benefits and maintenance obligations only increase the seizure allowance if the P-account holder has applied for this to his account-holding bank by submitting evidence.

Remedies

The debtor can take action against the bailiff's approach in the event of attachment by issuing a reminder in accordance with Section 766 of the German Code of Civil Procedure. The debtor against the seizure itself wants underlying titled turn claim, he can enforcement countersuit gem. § 767 ZPO.

Since the bailiff does not examine the property situation when the movable property is seized by him, it can also happen that something is seized that does not belong to the debtor. In such a case, the German Code of Civil Procedure (ZPO) has provided legal remedies that help the actual owner regain his rights. On the basis of Section 771 of the German Code of Civil Procedure - the so-called third party objection suit - the owner can claim his rights through a judicial process. The prerequisite for this is that the foreclosure has already started - usually with seizure - and has not ended, as well as the impairment of ownership of a thing or a property-like right. If the action is successful, the court pronounces the inadmissibility of the seizure in its verdict and stops the enforcement of the item. Holders of a lien or right of exploitation prior to seizure in foreclosure can also assert their rights by filing a lawsuit. The difference here, however, is that holders of a lien or exploitation right are not supposed to prevent foreclosure. Rather, this is in accordance with the action for preferably satisfaction . § 805 ZPO granted a privileged rank in relation to the other creditors from the proceeds of the auction.

Austria

The execution method is as enforcement proceedings a civil case .

Switzerland

Under Swiss law, the debtor is required to be present at the seizure (Art. 91, Paragraph 1, Item 1 DEBA). After unsuccessful or inadequate attachment, the obligee is issued with a certificate of loss with which he can later assert his claim should the debtor regain his assets.

See also

Web links

Wiktionary: Seizure  - explanations of meanings, word origins, synonyms, translations
Commons : Distraint  - collection of images, videos and audio files

Individual evidence

  1. ↑ BGH, decision of July 5, 2005, Az .: VII ZB 5/05 ; general on this: essay in JurPC
  2. ↑ Putzo in Thomas / Putzo § 827 Rn. 1, § 826 Rn. 4th
  3. ↑ Glenk: Indispensable all sorts - office and liability of the bailiff. In: NJW - New Legal Weekly. 32/2014, pp. 2315-2319.
  4. ↑ Glenk: Antiquated non-attachability rules in the ZPO. In: ZRP - Journal for Legal Policy. 8/2013, pp. 232-236.
  5. ↑ cf. Ministry of Justice of the State of North Rhine-Westphalia (ed.): Justice auction Germany & Austria. Retrieved August 12, 2020.
  6. ↑ General terms and conditions of the judicial auction as of June 2015.
  7. ↑ cf. Section 103 GVGA separation of fruit and auction (Section 824 ZPO).
  8. ↑ Florian Lohkamp: Exploitation of the pledged goods. Brief overview 2010.
  9. ↑ The seizure and recovery of physical property. Opportunities for other use Haufe.de, accessed on August 11, 2020.
  10. ↑ Olaf Muthorst: exploitation of the mortgaged property , in: Principles of the foreclosure law. Nomos-Verlag, 2nd edition 2016, pp. 112–116.
  11. ↑ ZPO: The auction process for executing movable property lecturio.de, May 16, 2019.
  12. ↑ Decision of July 5, 2005 - VII ZB 5/05 ; general on this: essay in JurPC
  13. ↑ a b Announcement of the attachment exemption limit 2009 of May 15, 2009 ( Federal Law Gazette I p. 1141 ).
  14. ↑ Basic tax allowance in Section 32a, Paragraph 1, No. 1 of the Income Tax Act (EStG) was identical on January 1, 2007 and January 1, 2009 to the tax allowance on January 1, 2005, so that the tax exemption limits on July 1, 2007 and January 1, 2009 July 2007 according to § 850c Abs. 2a ZPO have not increased. Formally, however, the amounts should have been adjusted as of July 1, 2009, since on March 6, 2009 Art. 1 No. 1 G. v. March 2, 2009 ( Federal Law Gazette I p. 416 ) the allowance in § 32a EStG was increased. Due to Section 52 (1) EStG in the version of this law, this increase was in effect from January 1, 2009. The 2009 seizure exemption notice was only published in May 2009 after this change.
  15. ↑ Announcement of exemption from attachment 2011 v. May 9, 2011 ( BGBl. I p. 825 )
  16. ↑ Announcement of exemption from attachment 2013 v. March 26, 2013 ( BGBl. I p. 710 )
  17. ↑ Announcement of the attachment exemption limit 2015 v. April 27, 2015 ( BGBl. I p. 618 )
  18. ↑ Information service debt counseling - increase of the seizure exemption limits as of July 1st, 2013 ( memento of the original of October 5th, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.infodienst-schuldnerberatung.de
  19. ↑ Law to reduce cold progression (PDF; 48 kB), BT-Drs. 17/11842 , passed by the Bundestag on January 17, 2013, approval by the Bundesrat on February 1, 2013, announced on February 25, 2013 ( Federal Law Gazette I p. 283 )
  20. ↑ Announcement of the seizure exemption limit 2017 v. March 28, 2017 ( BGBl. I p. 750 )
  21. ↑ Announcement of exemption from attachment 2019 v. April 4, 2019 ( BGBl. I p. 443 )
  22. ↑ Exemption from garnishment for labor income 2011 ( memento of the original from October 27, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF) @1@ 2Template: Webachiv / IABot / www.bmj.de
  23. ↑ Attachment table generator Justice portal of the Ministry of Justice of North Rhine-Westphalia, accessed on August 13, 2018.
  24. ↑ For the first time on July 1, 2003 according to § 850c Para. 2a ZPO
  25. ↑ Hunziker / Pellascio, p. 107.
  26. ↑ on the seizure loss certificate: Hunziker / Pellascio, p. 154 ff.